O'Donnell v O'Donnell
[2019] ACTSC 313
•8 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | O’Donnell v O’Donnell |
Citation: | [2019] ACTSC 313 |
Hearing Date: | 16 October 2019 |
DecisionDate: | 8 November 2019 |
Before: | Crowe AJ |
Decision: | See [69] |
Catchwords: | PRACTICE AND PROCEDURE – CROSS-VESTING LEGISLATION – Application to transfer in accordance with the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) – whether a claim under the Family Provision Act 1969 (ACT) should be transferred to NSW – where domicile in issue – where proceedings also commenced in NSW seeking orders under the Succession Act 2006 (NSW) – where a potential notional estate in existence – determination in accordance with the “interest of justice” – proceedings transferred to the NSW Supreme Court |
Legislation Cited: | Court Procedure Act 2004 (ACT) s 5A Domicile Act 1982 (Cth) ss 3, 10 Succession Act 2006 (NSW) ss 59, 60, 63, 64, 88 Part 3.3 |
Cases Cited: | Application of Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary Dempsey [2016] NSWSC 159 Bateman v Fairfax Media Publications Pty Ltd & ors [2013] ACTSC 78, 8 ACTLR 13 Young v Lalic [2006] NSWSC 18 |
Parties: | Kalpana O’Donnell (Plaintiff) Jamie Francis John O’Donnell (First Defendant) Vanessa Alicia Channon (Second Defendant) Laura Elspeth O’Donnell (Third Defendant) Ashley Grace O’Donnell (Fourth Defendant) Evenlong Pty Ltd (Fifth Defendant) Duboti Pty Limited (Sixth Defendant) |
Representation: | Counsel L Ellison SC & L Nurpuri (Plaintiff) I Coleman SC & M Pringle (Defendants) |
| Solicitors Vincent Butcher Lawyers (Plaintiff) Campbell & Co Lawyers (Defendants) | |
File Number: | SC 278 of 2019 |
Crowe AJ
The late Garry Francis O’Donnell (the Deceased) died in Canberra on
26 November 2018, aged 67 years. He left five adult children. For convenience only, and meaning no disrespect, I will refer to them by their first names. They are Jaimie, Vanessa, Laura, Ashley and Simon. By his last will made on 18 August 2015 the Deceased appointed Jaimie, Vanessa, Laura and Ashley as his executors and left his estate to be divided equally among the five children. No provision was made for the plaintiff.
In late 2012, the plaintiff and the Deceased met and formed a relationship. They started living together in January 2013 and were married in Las Vegas in the United States on 9 May 2013. The plaintiff had been working as a public servant at a senior level. She had been on leave for some time and was due to return in 2014. She says that the Deceased persuaded her to give up work so that they could spend more time together.
The plaintiff and the Deceased lived an expensive lifestyle involving considerable travel, purchase of luxury goods and fine dining. The plaintiff says that the Deceased provided her with “spending money” in cash of approximately $3,000 per week. From time to time he also gave her other gifts of money and jewellery.
On 27 August 2015, the Deceased signed a statutory declaration in which he explained why he had decided not to leave the plaintiff anything in his will. He stated that it was his belief that the plaintiff would inherit considerable amounts from her parents (whom he understood to be wealthy). He saw her as financially secure and having no need to benefit from his estate.
The Deceased and the plaintiff remained together until the former’s death. However, he had a number of serious health problems in his final years. The plaintiff says that she was required to provide assistance to the Deceased from time to time due to his health issues. The plaintiff claims that she was wholly dependent on the Deceased at the time of his death.
On 22 March 2019, Probate was granted to the executors by this Court. The estimated gross value of the estate was just over $10.62M, and the net value was $6.46M. According to the inventory filed with the Probate application, there were no assets held, or liabilities owed, outside the ACT.
On 17 April 2019, the plaintiff commenced proceedings in the NSW Supreme Court seeking an order pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act). The executors were named as defendants. I was informed from the bar table that Evenlong Pty Ltd and Duboti Pty Ltd had been added as defendants by consent. Section 59 of the Succession Act relevantly provides:
59When family provision order may be made
(1)The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
(a)the person in whose favour the order is to be made is an eligible person, and
(b)in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57---having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and
(c)at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2)The Court may make such order for provision out of the estate of the deceased person as the Court thinks out to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
Note. Property that may be the subject of a family provision order is set out in Division 3. This Part applies to property, including property that is designated as notional estate (see section 73). Part 3.3 sets out property that may be designated as part of the notional estate of a deceased person for the purpose of making a family provision order.
The matters which the Court may take into account in deciding eligibility, whether to make an order, and if so, the contents of any such order are set out in sub-s 60(2) of the Succession Act:
60Matters to be considered by Court
(2) The following matters may be considered by the Court:
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate,
(c)the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate,
(e) if the applicant is cohabiting with another person – the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate,
(j)any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person,
(n) the conduct of any other person before and after the date of the death of the deceased person,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
Sub-section 63(5) allows the Court to make a family provision order out of property not forming part of the estate of the deceased person if it is a designated part of the “notional estate” of that person under Pt 3.3 of the Act. I will return to the notional estate concept below.
Section 64 of the Succession Act is also important here. It provides:
64Orders may affect property outside jurisdiction
A family provision order may be made in respect of property situated outside New South Wales when, or at any time after, the order is made, only if the deceased person was, at the time of death, domiciled in New South Wales.
On 3 June 2019, the plaintiff filed an Originating Application in this Court joining the executors and also the two companies Evenlong Pty Ltd and Duboti Pty Ltd. In that application the plaintiff sought substantive relief pursuant to s 8 of the Family Provision Act 1969 (ACT) (Family Provision Act). That section provides:
8 Family provision orders
(1)On application by a person entitled, under section 7, to apply for provision out of the estate of a deceased person, the Supreme Court may order that the provision as that court thinks be made for the applicant out of the estate.
(2)The Supreme Court shall only make an order under subsection (1) if satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available –
(a)under the will of the deceased; or
(b)if the deceased died intestate – under the law applicable to that intestacy; or
(c)under that will and that law combined.
The Originating Application came before me for directions on 11 July 2019. At that time the solicitor for the plaintiff appeared. She advised the court that the reason why the proceedings had been commenced in this Court was because of a dispute between the parties about the appropriate jurisdiction for the matter to be heard in, based on the issue of where the Deceased was domiciled. The plaintiff claimed that the Deceased’s domicile was in NSW. This was contested by the defendants, who said the Deceased was domiciled in the ACT, and had no relevant connecting factors with NSW. I was informed that these issues had been raised before the NSW Supreme Court, and that at one point a Judge of that court had contemplated summary dismissal of the NSW claim. There was some discussion before me of the possibility of transferring one or other of the proceedings under the either of the jurisdictions’ cross-vesting legislation, but the plaintiff made clear that she wanted to inspect certain documents before making such an application. In any event, consensual directions were then made as to discovery and the issuing of subpoenas. The matter was listed for further directions on 29 August 2019.
On 26 August 2019, the plaintiff filed an Application in Proceeding seeking an order that the matter be transferred to the NSW Supreme Court pursuant to sub-s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) (the ACT Cross-vesting Act). The application was supported by an affidavit from the plaintiff’s solicitor, Mr Butcher, sworn on 22 August 2019.
I was directed to the transcript of what occurred at the second directions hearing on
29 August 2019. Having read that transcript I discovered that the transcriber had confused the relevant parties at various points. These errors were brought to the attention of the transcription service provider, who issued a corrected transcript, which was made available to the parties. It is my recollection that Ms Campbell for the defendants took issue with the bare assertion by Mr Butcher that the Deceased was domiciled in NSW. Ms Campbell submitted that the Court could not deal with the plaintiff’s Application in Proceeding before deciding the domicile issue. I agreed that the issue of domicile was relevant to the cross-vesting question. I did not agree that the Application in Proceeding could not be heard until the issue of domicile had been determined. In any event, I listed the Application in Proceeding for hearing on 16 October 2019 and made directions for the filing and service of evidence and submissions for that hearing.
On 4 October 2019, the defendants filed an Application in Proceeding seeking a declaration that the Deceased’s domicile, or habitual place of residence, at the time of his death was in the ACT. That application was made returnable on 16 October 2019. It was supported by 18 affidavits.
At the hearing on 16 October 2019, the plaintiff was represented by Mr L Ellison SC and with him Ms L Nurpuri. Mr I Coleman SC leading Ms M Pringle appeared for the defendants. A considerable quantity of affidavit evidence was relied-upon by each side. Much of this consisted of copies of affidavits which had been filed in the NSW proceedings. Most of these are fairly short. Many contain assertions or statements of belief as to where the Deceased was living during the years leading up to his death. Most of these were relied upon in support of the plaintiff’s application. Rather than embark on the large exercise of dealing with objections one by one, Counsel agreed that I should deal with the evidence by accepting that which is supported by identifiable conversations in direct speech involving the Deceased, or those which occurred in his presence.
I made it clear to the parties at the outset of the hearing that I would not be embarking on determining the domicile issue in this decision. Ultimately this will be a matter for final hearing. Having regard to the quantity and nature of the evidence, it is not an efficient use of Court resources to attempt to determine the issue as a separate question before the final hearing. I have therefore proceeded on the basis that I am to form a preliminary view on the domicile issue insofar as it is related to evaluating the “interests of justice” under the ACT Cross-vesting Act.
It is necessary to take the course outlined above because the domicile of the Deceased determines which of the differing legal regimes is to be applied to assess the plaintiff’s claim for a family provision order (or its NSW equivalent). Those principles were summarised by Brereton J in Taylor v Farrugia [2009] NSWSC 801 in the following terms (noting that “testator family maintenance” and “family provision” legislation are equivalents) at [26]:
Both Salvatore and Emanuela died domiciled in Malta, leaving real and personal property both in Malta and in New South Wales. In those circumstances the relevant law is, as stated by Scholl J in Re Paulin [1950] VLR 462 at 465, that in connection with the application of testator’s family maintenance legislation, first, the Courts of the domicile alone can exercise jurisdiction under the testator’s family maintenance legislation of the domicile in respect of movable and immovable property in the place of domicile; secondly, the Courts of the domicile alone can exercise such jurisdiction in respect of movable property of the deceased outside the place domicile; but thirdly, Courts of the situs alone can exercise such jurisdiction in respect of immovable property of the deceased out of the place of domicile, and Courts of the place of domicile cannot exercise such jurisdiction [see also Pain v Holt (1919) 19 SR (NSW) 105; Re Sellar (1925) 25 SR (NSW) 540; Re Donnelly (1927) 28 SR (NSW) 34; Re Osborne [1928] St R Qd 129; Re Butchart [1932] NZLR 125, 131; Ostrander v Houston (1915) 8 WWR 367; Heuston v Barber (1990) 19 NSWLR 354; Balajan v Nikitin (1994) 35 NSWLR 51]. It follows that any order made by this Court can affect only immovable property of the deceased in New South Wales; it cannot affect movable property in New South Wales, nor any property outside the State. However, in deciding what order should be made affecting immovable property in New South Wales, the Court is entitled nonetheless to take into account assets beyond the reach of its jurisdiction which inform the extent to which eligible persons and beneficiaries and others having claims on the deceased’s testamentary bounty have and will receive provision. The Court can also take into account assets beyond the reach of the jurisdiction in deciding what order to make in respect of costs relating to the assets in the jurisdiction [see Re Paulin and Re Donnelly].
There is no statutory provision in the ACT which affects the principles stated by Brereton J. In NSW, s 64 of the Succession Act (see [10] above) provides an extension of the Court’s power.
That section had previously allowed the NSW Supreme Court to make a family provision order in relation to property situated outside NSW even if the deceased had not been domiciled in that State. However, in Hitchcock v Pratt [2010] NSWSC 1508, Brereton J held that such an extension of the jurisdiction of the Court was beyond the legislative power of the NSW Parliament. His Honour concluded that the section was valid to the extent that the section extended the power of the Court to make an order in relation to immoveable property of a deceased person domiciled in the State which was situated outside the State.
On the information before this Court, all of the assets of the estate are located in the ACT. However, the Deceased had arranged his affairs so that very substantial assets, including real property in NSW, were held within a complex of trusts controlled by companies of which he was a director and in some cases a shareholder. At the end of the hearing on 16 October 2019, I gave the parties leave to file a diagrammatic representation of the Deceased’s company/trust interests. My preference was for a single chart, agreed by the parties, to be provided to the Court. Failing that, each party was permitted to file a document which she/they asserted to accurately represent the Deceased’s interests.
In the end, as the parties were unable to come to an agreed position, both sides filed separate charts. I will admit them both into evidence on the Application in Proceeding. The document filed by the plaintiff is marked Exhibit “P4” and that filed by the defendants Exhibit “D2”.
The existence of these trusts and companies raises the possibility that, if the Deceased is found to have been domiciled in NSW an order might be made designating some of that property as “notional estate” for the purposes of deciding an appropriate family provision order in relation to the plaintiff’s claim. The ACT does not possess an equivalent to the “notional estate” provisions in NSW.
The defendants submitted that s 88 of the Succession Act provided an insuperable hurdle to the plaintiff’s claim in relation to the notional estate. That section provides:
The Court must not make a notional estate order unless it is satisfied that:
(a) the deceased person left no estate, or
(b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or
(c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances.
The plaintiff submitted that the particular circumstances of this case makes the hurdle (in so far as it should be characterised in this way) surmountable. The lifestyle adopted by the Deceased and the plaintiff, her status as his widow, the fact that she gave up work at his request, the potential magnitude of the Deceased’s resources outside the estate and the situation of the five beneficiaries of the estate might well result in the Court being satisfied as to the applicability either sub-ss 88(b) or (c) of the
Succession Act.
It is not necessary for me to analyse in detail the potential application of Part 3.3 of the Succession Act in relation to the circumstances in which an order might be made designating certain property as part of the Deceased’s notional estate. I am satisfied based on the reasons advanced by Mr Ellison SC that s 88 would not prevent the making of a notional estate order if the Court concluded that such an order was open and appropriate. I am also satisfied that the evidence is sufficient to establish that the plaintiff would, if proven to have been domiciled in NSW, have a reasonably arguable claim for a notional estate order.
It can be seen from the above that the following consequences will flow from the ultimate finding as to the Deceased’s domicile:
(1)If he was domiciled in the ACT, the property available for a family provision order would be limited to the net estate. Insofar as the interests of the beneficiaries are concerned, if it could be shown that they were all sufficiently entitled to the control of and benefit from the substantial assets held outside the estate it would be open to the Court to take that into account in fashioning an order in favour of the plaintiff. However, because there is no notional estate provision in the Territory, any order could not extend to the property outside the estate.
(2)If he was domiciled in NSW the NSW Supreme Court would be able to fashion an order by reference to both the net assets in the estate and also that part of the notional estate which the Court saw as appropriate to take into account (assuming that the pre-conditions for making such an order under Part 3.3 of the Succession Act are established). Having regard to the magnitude of the assets outside of his estate, which were apparently controlled by the Deceased before his death, it seems to me that there must be a theoretical possibility that the plaintiff could obtain a family provision order exceeding the net value of the estate on this basis.
Submissions
Plaintiff
Mr Ellison SC for the plaintiff submitted that the evidence disclosed a reasonable argument that the domicile of the Deceased was NSW. The purchase of the Pyrmont property and the fact that the plaintiff regarded her home as being in Sydney are important indicators of the Deceased’s intention. That is supported by the evidence of his social connections. It is reasonable to infer that the Deceased would continue to cohabitate with the plaintiff and that he thus also intended to make his home in Sydney. In those circumstances, the more appropriate Court to determine the plaintiff’s claim is the Supreme Court of NSW. That argument is particularly supported by consequence (2) summarised in [27] above.
The plaintiff relied on sub-paras 5(2)(b)(i) and (iii) of the ACT Cross-vesting Act. By reference to British American Tobacco Australia Services Ltd v Laurie [2009] NSWSC 83 and BHP Billiton Limited v Schultz [2004] HCA 61; 221 CLR 400 (Schultz), it was argued that having regard to the proceedings already under way in the NSW Supreme Court, and the potential application of the written law of that State, it was the “more appropriate” forum. It is therefore in the interests of justice that the ACT proceedings be transferred to the NSW Supreme Court.
Defendants
Mr Coleman SC for the defendants fairly conceded that the circumstances were such that whichever law applied (that is the ACT Family Provision Act or the NSW Succession Act) the plaintiff will likely recover a family provision order “of some magnitude”. This being the case, his clients opposed the transfer of the proceedings. It was submitted that the only reason there were proceedings in NSW was because the plaintiff had chosen to bring those proceedings. She did that in an attempt to take advantage of the legal regime in NSW, which allows the Court to make a notional estate order. In other words, the plaintiff was engaging in a type of forum shopping. In that regard, it would not be in the “interests of justice” to transfer the ACT proceedings. Relying-upon Schultz at [15], the defendant argued that the interests of a party do not equate to the interests of justice.
As to the domicile of the Deceased, the defendants refer to the Domicile Act 1982 (Cth) (Domicile Act) which applies in the ACT by virtue of sub-s 3(6)(a). To acquire a domicile of choice in a State or Territory, under s 10 of the Domicile Act, the relevant person must have intended to have made his/her home indefinitely in that place.
Mr Coleman SC argued that the Deceased was still domiciled in the ACT and had no intention to relocate on an indefinite basis to Sydney. To make this point he directed the Court’s attention to hospital and telephone records, the Deceased’s driving licence, together with the evidence of his employees and business associates as to his normal everyday activities.
In relation to the trusts which the Deceased had setup during his lifetime,
Mr Coleman SC submitted that the preponderance of them and/or the assets which they control were in the ACT. Moreover, the balance of convenience strongly supports the matter remaining in the ACT. This is because:
(1)Most of the defendants reside in the ACT;
(2)Of the 31 witnesses (presumably other than the parties), 18 appear to reside in the ACT and only nine in NSW. Four reside in neutral jurisdictions.
(3)The Deceased’s accountants and the relevant documents relating to the companies and trusts are in the ACT.
Indeed, the connecting factors are such that the ACT Supreme Court is the “natural forum” for the proceedings.
It was also submitted that the plaintiff could have, at the time of commencing the NSW proceedings, invoked the combined effect of the NSW and ACT Cross-vesting legislation to include by way of alternative relief a family provision order under the
ACT Family Provision Act. The defendants relied upon Young v Lalic [2006] NSWSC 18 (Young) per Brereton J at [42] to support that proposition. The failure to adopt that course led to the duplication of proceedings and the need for the current
Application in Proceeding. Having regard to modern case management principles, it would not be in the interests of justice for such behaviour to be permitted.
Finally, the defendants referred to the comment of Brereton J in Valceski v Valceski [2007] NSWSC 440; 70 NSWLR 36 (Valceski) at [20] that:
It is a prerequisite to a transfer order that the transferee court have jurisdiction in respect of the relevant (transferred) matter. It will not be more appropriate that the relevant proceeding be determined by the proposed transferee court if it does not have jurisdiction to do so.
It was argued that there is sufficient uncertainty in relation to the domicile issue to engage his Honour’s qualification of the transfer power. Specifically, it would not be in the interests of justice for the matter to be transferred to the NSW Supreme Court only for it to be transferred back in the future should it be found that the Deceased was domiciled in the ACT.
Plaintiff in reply
Mr Ellison SC submitted that it is reasonable to accept that husbands and wives have the same domicile in practical terms. In that context the Domicile Act has no particular work to do here. The evidence relied-upon by the plaintiff is more concerned with the Deceased’s social and domestic situation, while that relied-upon by the defendants is concerned with his business affairs. The most important witness in relation to the Deceased’s intention was the plaintiff. Her evidence supports the conclusion that the Deceased intended to make his home in Sydney. The fact that his residential address on formal documents had not been changed is of no great weight. There is always some delay in attending to such matters.
In relation to the commencement of proceedings in NSW, that was a reasonable step for the plaintiff given the domicile situation and the potential availability of a notional estate order. It was not the situation that proceedings had been commenced in the ACT and then, upon a sudden realisation of a more favourable possible outcome in NSW, a decision was made to commence proceedings in NSW and seek a transfer.
Consideration
The principles to be considered in making a decision as to whether proceedings should be transferred under the ACT Cross-vesting Act were comprehensively surveyed by Refshauge J in Bateman v Fairfax Media Publications Pty Ltd & ors [2013] ACTSC 78, 8 ACTLR 13 at [68]-[70]. I have extracted those paragraphs which I see as relevant to the decision to be made below:
(a)The Cross-Vesting legislation requires that the court to which the application for a transfer is made must exercise the power of transfer whenever “it appears” that it is in the interests of justice that it should be exercised: Schultz at 421; [14] (per Gleeson CJ, McHugh and Heydon JJ); 431; [49] (per Gummow J).
(b) The power to exercise the power to transfer is not a discretionary power but a mandatory obligation when the interests of justice are determined. No question of discretion arises: Schultz at 434-5; [62]-[63] (per Gummow J); 481; [222] (per Callinan J).
(c) The court is not concerned that a court in which the proceedings have been commenced, having a prima facie duty to exercise jurisdiction which has been regularly invoked, asks whether it is justified in refusing to perform that duty. Rather, the court is required by the Acts to ensure that cases are heard in the forum dictated by the interests of justice: Schultz at 421; [14] (per Gleeson CJ, McHugh and Heydon JJ).
(d) The plaintiffs’ choice of forum, indicated by commencement of the proceedings, does not require any specific emphasis or weight to be given to it: Schultz at 425; [25] (per Gleeson CJ, McHugh and Heydon JJ); 439; [77] (per Gummow J); 466; [170] (per Kirby J); 492; [258] (per Callinan J). The reasons why a plaintiff has commenced proceedings in a particular court might or might not be concerned with a matter related to the interests of justice: Schultz at 421; [15] (per Gleeson CJ, McHugh and Heydon JJ).
(e) It is not necessary that it should appear to the court hearing the application that the court in which the proceedings have been commenced is a clearly inappropriate forum. It is both a necessary and sufficient criterion that it appears to the court hearing the application that, in the interests of justice, one court is more appropriate than the other court: Schultz at 419-20; [7]-[11] (per Gleeson CJ, McHugh and Heydon JJ); 439; [77] (per Gummow J); 463-6; [161]-[168] (per Kirby J); James Hardie at 377; [87]. The court hearing the application is required to decide which is the more appropriate court upon a fair balancing of all the factors defining the relevant interests of justice: Schultz at 424; [22] (per Gleeson CJ, McHugh and Heydon JJ).
(f) The interests of justice are not the same as the interests of one party and there may be interests wider than those of either party to be considered. Even so, the court should consider the interests of the respective parties which might in some respects be common with the interests of justice, such as, for example, in containing costs and promoting efficiency, and in other respects be conflicting: Schultz at 421; [15] (per Gleeson CJ, McHugh and Heydon JJ).
(h) The more appropriate court will be the court that is the natural forum as determined by connecting factors to that forum: Schultz at 419-20; [10] (per Gleeson CJ, McHugh and Heydon JJ); Valceski v Valceski at 411; [69].
(i) Each case depends on its own particular facts: Eden v Amaca Pty Ltd [2007] VSC 374 at [10].
(j) The court is not required, indeed probably should not, involve itself in a comparison of the respective legislative policies of the jurisdictions which are reflected in the relevant statutory enactments that make provision for the law or procedure involved in the proceedings: Schultz at 426; [26] (per Gleeson CJ, McHugh and Heydon JJ).
(k) The court hearing the application has been urged to adopt what is called a “nuts and bolts” management decision as to which court, in pursuit of the interests of justice, is more appropriate to hear and determine the dispute brought by the plaintiff: Schultz at 421; [13] (per Gleeson CJ, McHugh and Heydon JJ) quoting Bankinvest at 154. This is, perhaps, what Young J (as his Honour then was) suggested in Hayward v Barratt [2000] NSWSC 708 at [2] to be “a case management exercise to see what would be the best order to make to facilitate the trial of the litigation.” That is to say, justice “is not disembodied or divorced from practical reality”: Schultz at 421; [15] (per Gleeson CJ, McHugh and Heydon JJ).
(l) Relevant connecting factors include matters of convenience and expense such as the availability of witnesses, the places where the parties respectively live or carry on their business, especially if relevant to the issues, and the law regulating the relevant facts in issue: Schultz at 422-3; [18]-[19] (per Gleeson CJ, McHugh and Heydon JJ). See also Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 478; Dawson v Baker at 207-8 (though some factors there listed are no longer relevant following Schultz); Valceski v Valceski at 411; [69]; Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394. Nevertheless, as Kirby P said in Bankinvest at 156, it is necessary, despite the test of connecting factors referred to in some decisions, to take a broad approach to the interests of justice that reflects the particular circumstances under consideration.
(m) In many cases, there will be a preponderance of connecting factors with one forum so that the answer to the question of which is the more appropriate forum is clear. In other cases, there may be significant connecting factors with both fora, that where the proceedings have been commenced and that to which the applicant wishes them to be transferred. Some of the factors will cancel each other out. The court will often be required to weigh up the considerations of cost, expense and convenience, especially when they conflict, but this is not an unknown task for a court: Schultz at 423; [19] (per Gleeson CJ, McHugh and Heydon JJ).
Refshauge J also considered some conflicting views as to whether the applicant for transfer carried an onus. His Honour, after setting out those views at [68](g), said this:
It seems to me that the debate as to the existence of an onus may be arid. The court hearing the application has a duty to transfer if it finds that it is in the interests of justice. That will depend on the court making a finding about the more appropriate forum. If the court does not make such a finding, it has no power to effect such a transfer. That the factors favouring and against a transfer are equal does not require reference to an onus for resolution. It would seem to me that in that case, the court could not find that one court was a more appropriate forum and thus order a transfer. In that sense, if there is no more appropriate court, the plaintiffs’ choice will prevail. On the other hand, the applicant must at least bear some obligation to bring forward and refer to matters that are designed to assist the court to find that the court to which the applicant seeks that the proceedings be transferred is a more appropriate forum. This seems to accord with the views of Robson J in Irwin v Queensland at [14] (f). See also Valceski v Valceski (2007) 210 FLR 387 at 411; [70].
I agree with his Honour’s comments on the question of whether there is an onus. I propose to apply the principles extracted at [39] above.
The relevant parts of sub-para 5(2) of the ACT Cross-vesting Act are:
If-
(a)A proceeding (in this subsection called the relevant proceeding) is pending in the Supreme Court (in this subsection called the first court); and
(b)It appears to the first court that-
(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State…and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or…
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;
The first court shall transfer the relevant proceeding to that other Supreme Court.
The defendants submit that sub-para 5(2)(b)(i) is not enlivened here because the plaintiff had commenced the proceeding in the NSW Supreme Court. I do not accept that submission. It seems to me that the sub-paragraph means what it says. The reference to “another proceeding pending in another State” is unqualified by reference to the party who takes the step to commence it. The crucial criterion for the operation of the sub-paragraph is that the proceeding “arises out of, or is related to” the proceeding which is pending in this Court.
As can be seen from the description of the two proceedings summarised above there can be no doubt that they are related. They concern the same parties, the same factual matrix, and in essence, the same relief. It is my view, therefore, that the power under sub-para 5(2)(b)(i) is available in the circumstances of this case.
The defendants also argue that the structure of the section suggests that the power under sub-para (iii) only arises in circumstances other than those covered by sub-paras (i) and (ii). That proposition appears to be correct. However, as the tests under each of the subparagraphs are in substance the same I am not sure that much turns on the distinction in this case.
The law in relation to the determination of an individual’s domicile was helpfully summarised by Slattery J in Application of Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary Dempsey [2016] NSWSC 159. His Honour said (noting that the issue in that case was whether the deceased was domiciled in NSW, Queensland or the UK) at [171]-[180]:
The legal framework for assessing domicile was made uniform in Australia shortly before the deceased’s death. Identical domicile legislation was passed in each of the Commonwealth, New South Wales and the Queensland Parliaments and all came into effect on 1 July 1982 and so applies to the deceased: Domicile Act 1982 (Cth), Domicile Act 1979 (NSW), Domicile Act 1981 (Qld). It is convenient to use the identical section numbering of the New South Wales and Queensland legislation in these reasons without distinguishing between the two jurisdictions.
The statutory rules enacted in this legislation apply whenever domicile has to be determined after 1 July 1982 on the basis that the legislation has always been in force: s 4(2). The legislation refers to a “country” but this relevantly includes States or provinces: s 3. And a “union” within the legislation means any country “that is a union or federation or other aggregation of two or more countries and includes the Commonwealth of Australia”. A person who is in accordance with the rules of common law relating to domicile, as modified by the legislation, is domiciled in a union but is not, apart from s 10, domiciled in any particular one of the countries that together form the union, is domiciled in one of those countries in which he or she has for the time being the closest connection: s 10.
The law of domicile of origin may be shortly stated. The domicile of origin is that domicile is ascribed to each individual at birth by force of law: M Davies, AS Bell and PLG Brereton, Nygh’s Conflict of Laws in Australia (9th ed 2014, LexisNexis Butterworths Australia) (“Nygh”). At common law a nuptial child takes the domicile of its father at birth: Nygh at [13.13].
The law in relation to domicile of choice may be shortly stated. At common law it could be difficult to prove that a person had the requisite intention to acquire a domicile of choice; it being presumed that a person exchanged a domicile of origin for a domicile of choice with the greatest of reluctance. The onus of proving the abandonment of domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change and the standard of proof is on the balance of probabilities: Nygh at [13.23]. But the statutory position is that the acquisition of a domicile of choice in place of a domicile of origin may be established by evidence that would be sufficient to establish the domicile of choice if the previous domicile had been a domicile of choice: Domicile Act, s 11. Thus the onus of proof to establish the departure from a domicile of origin is now no heavier than it would be to establish the change from one domicile to another.
The statutory intention a person must have to acquire a domicile of choice in a country is “the intention to make his or her home indefinitely in that country”: Domicile Act, s 9. And the rule of law whereby the domicile of origin revives upon the abandonment of a domicile of choice, without the acquisition of a new domicile of choice is now abolished: Domicile Act, s 6. But the statutory test for acquiring a domicile choice in a country is the same as the test at common law, namely that the person acquires a domicile of choice in a country by being lawfully present there with the intention of remaining in that country indefinitely: Nygh at [13.19] – [13.20].
Two elements must be satisfied to acquire a domicile of choice: physical presence and intention. Provided the intention can be proved to exist, the length of presence in the jurisdiction is immaterial: Nygh at [13.19].
The necessary mental element to obtain a domicile of choice has sometimes been described as “an intention to reside permanently or indefinitely in a country”: Nygh at [13.19]. The term “permanent” in the formula is nothing more than a way of indicating that the person’s intention is one which when formed is one to remain a resident of the country for a period then regarded by him or her as unlimited in time and without having addressed himself or herself to the question of giving up such residence and leaving the country of his or her choice upon the happening of some particular and definite event in the foreseeable future, notwithstanding that he or she may entertain a “floating” intention to return at some future period of time to his or her native country: Hyland v Hyland (1971) 18 FLR 461 per Asprey JA. The distinction is sometimes seen as one between a definite intent to return or move on and a “floating intention”, but the question must be considered objectively: Nygh at [13.19]. An objective assessment means that it is not so much the hopes and expectations of the person concerned that is at issue but the probability in his or her assessment of the contingencies he or she has in contemplation being transformed into actualities: Nygh at [13.19]. The correct construction of the statutory test under Domicile Act, s 9 is that it may only clarify and does not change the common law test: In the Marriage of Henry (1995) 19 Fam LR 227, reversed by the High Court on other grounds – Henry v Henry (1996) 185 CLR 571, and see Nygh at [13.20].
At common law a domicile of choice was abandoned when a person left the territory of the existing domicile with the intention of never returning or, having left that territory at first for a limited duration, subsequently formed the intention not to return: Nygh at [13.21]. However in order to abandon an existing domicile it is not necessary to severe all links with the country of the former domicile. Thus a party will acquire a new domicile when he or she establishes that his or her principal residence is in another country, even though he or she retains a residence in the country of former domicile for business, study or other purposes: Plummer v Inland Revenue Commissioners (1988) 1 All ER 97 at 106. For example a Fijian domiciliary has been held to have acquired an Australian domicile of choice while retaining a home in Fiji: Ferrier Watson v McElrath (2000) 26 Fam LR 169.
A person’s presence in a particular place raises the presumption of domicile there: Re McKenzie (1951) 51 SR (NSW) 293 at 298, per Sugarman J. But this statement may be no more than an indication that in the absence of any other evidence such presence constitutes sufficient evidence from which the existence of a domicile at that place can be inferred and if other evidence is available the fact of presence is merely one of many factors to be considered: Nygh at [13.26]. Intention in the main should be deduced from behaviour rather than a person’s own declaration, but “honest evidence of actual intention cannot be cast aside and treated as non-existent and some sound reason must be found for disbelieving it”: Fremlin v Fremlin (1913) 16 CLR 212 at 234 and see Nygh at [13.26].
The importance of any one fact is relative and the ultimate question is always - what is the proper conclusion to be drawn from all the circumstances: Re Cartier (1952) SASR 280 at 291 and se Nygh at [13.26].
In addition to the matters summarised by his Honour, as noted at [46] above, the Commonwealth Act applies in the ACT. The section numbering is a little different from those referred to by his Honour, but the substance of the Commonwealth Act is the same as the legislation in NSW and Queensland.
I have read the affidavit evidence addressing the issue of the Deceased’s domicile. I have made allowance for those parts of the affidavits which have been objected to. I have given little weight to bare expressions of opinion. It certainly appears that prior to the commencement of his relationship with the plaintiff the Deceased’s domicile was in Canberra. The evidence filed for the plaintiff supports the proposition that the Deceased did intend to move to Sydney, either to reside in the Pyrmont apartment, or perhaps in another apartment referred to as the “Versace” apartment for his retirement. There is also evidence that the Deceased from time to time referred to the Pyrmont apartment as his “home”. Against this, the evidence relied upon by the defendants puts in issue the Deceased’s expression of intention to move to Sydney and describes a pattern of behaviour consistent with him continuing to live in Canberra. The defendants’ evidence suggests the Pyrmont property was bought primarily as an investment, and somewhere for the Deceased and the plaintiff to stay when passing through Sydney. Certainly, the various medical and telephone records indicate that the Deceased continued to spend a considerable proportion of his time in Canberra during the last years of his life.
As indicated above, I can only attempt, at best, a preliminary assessment of the Deceased’s domicile. In order to make the required objective assessment of whether the Deceased had a definite intent to move his home permanently, or indefinitely, from Canberra to Sydney, the Court charged with making a final determination will have to make findings as to the credibility of the witnesses for both sides. In making that assessment the Court will be required to make a finding as to the probability of that intention actually being put into effect, if that had not already occurred by the time of the Deceased’s death. Such a finding will depend very much on acceptance of the evidence of the plaintiff and the witnesses who support her account.
The task is particularly difficult here because the wealth and lifestyle of the Deceased meant that he was able to purchase (directly, or indirectly through his trusts or companies) multiple residential properties in different States, in addition to those in the ACT. He was also able to travel extensively and spent considerable time in both Canberra and Sydney for social and business reasons.
There is force in the submission made by Mr Coleman SC that while the evidence filed for the plaintiff might suggest that the Deceased did have the intention to acquire a new domicile (i.e., in NSW) it falls short of establishing that he had acted to put that intention into effect. Mr Ellison SC argued that, on the contrary, the purchase and use of the Pyrmont residence was an important indicator that the Deceased was likely to carry out his expressed intention. That may be so, however it is notable that the property was purchased in 2013, some five years before the Deceased’s death. The plaintiff will have to rely on the strength of the testimony amounting to the “honest evidence of actual intention” to overcome what might have been an inertia in terms of actually moving on an indefinite basis.
I considered that it might be possible to form a reasonably firm view as to the relative prospects of the contending parties succeeding in relation to the domicile argument. Having reviewed the evidence I am afraid I have not been able to reach such a conclusion. I see the issue as evenly balanced and very much turning on the credibility of the key witnesses for each side. Suffice to say, in the context of the Application in Proceeding under consideration, I have concluded that the plaintiff does have an arguable case that the Deceased was domiciled in NSW.
That conclusion is of particular importance here because it means that the plaintiff has a reasonable prospect of engaging the capacity of a court to make a notional estate order under the NSW Succession Act. If no other proceedings had been commenced it would have been logical for the plaintiff to amend her
Originating Application in this Court to include relief under the NSW law as an alternative claim. Such an amendment (subject to time limit issues) would have been open having regard to sub-s 4(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (NSW Cross-vesting Act) and sub-para 9(a) of the ACT Cross-vesting Act (also see Young at [42] per Brereton J).
I accept the submission of the defendants that the plaintiff could have included as an alternative claim for relief one under the Family Provision Act in the NSW proceedings by relying on the cross-vested jurisdiction. I asked Mr Ellison SC why the plaintiff had not done that. He replied that those advising the plaintiff did not believe it to be appropriate. I understood his concern to be that there may have been some problem with the NSW Supreme Court embarking on the determination of a right arising only under the statute of another jurisdiction.
I have some difficulty with that explanation, particularly in the circumstances of this case where the lack of certainty as to domicile realistically brings the laws of both the ACT and NSW into play. It seems to me that this situation is precisely what the cross-vesting legislation was introduced to deal with.
Be that as it may, the fact is that proceedings have been commenced in both jurisdictions. That is the reality that I have to deal with in deciding this application. I do not see it as appropriate under case management principles informed by s 5A of the Court Procedure Act 2004 (ACT) to, in effect, penalise the plaintiff for having made a particular forensic choice in the past.
In relation to the defendants’ submission on the comment made by Brereton J in Valceski (see above at [35]), it is necessary to place what his Honour said into context. That case concerned an application to transfer a claim by a third party in the Equity Division of the NSW Supreme Court. The object in dispute was a property which was claimed to be part of the matrimonial assets of the relevant husband and wife. The wife had previously commenced proceedings for (amongst other things) property orders in the Family Court of Australia in relation to that property (and others).
The wife applied for an order transferring the third party’s claim from the NSW Supreme Court to the Family Court under sub-s 5(1) of the NSW Cross-vesting Act. The terms of that subsection are quite different from the provision I am dealing with. It provides:
(1) Where:
(a) a proceeding (in this subsection referred to as the "relevant proceeding" ) is pending in the Supreme Court, and
(b) it appears to the Supreme Court that:
(ii) having regard to:
(A)whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court;
(B)the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and
(C)in the interests of justice,
it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be,
the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.
…
(9)Nothing in this section confers on a court jurisdiction that the court would not otherwise have.
It will be noted immediately that the equivalent to sub-para 5(2)(b)(i) of the ACT Cross-vesting Act is missing from sub-s 5(1)(b) of the NSW Act. That is because of the decision in Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511 (Wakim) in which it was held that the attempt to cross-vest State jurisdiction to the Family and Federal Courts was invalid. As a consequence, the power to transfer a case to the Family or Federal Courts based on the fact that there was already a related case pending in that Court was removed from the NSW Act.
Given the effect of Wakim, it can readily be seen that the issue of whether or not the Family Court would have jurisdiction to deal with the equity dispute was crucial. In was in that context that his Honour made the comments extracted at [35] above.
However, that concern does not arise here. The decision in Wakim did not affect the extension of power between State and Territory Supreme Courts effected by the equivalents of paras 4(3) and 9 of the ACT Cross-vesting Act in each jurisdiction.
It follows that, contrary to the submission of the defendants, if I order the transfer of this matter to the Supreme Court of NSW and that Court determines (in a final hearing, or otherwise) that in fact the Deceased’s domicile was in the ACT, it will nevertheless be seized with the jurisdiction to determine the plaintiff’s claim under the Family Provision Act. There can be no comparison between this case and the matter of Paris King Investments P/L v Rayhill [2006] NSWSC 403 discussed by Brereton J in Valceski at [22]. That was a matter where there had been reverse transfers of proceedings due to doubts about the jurisdiction of the Family Court.
In Valceski his Honour found that the Family Court had power to determine the issues raised by the equity suit under its accrued jurisdiction. He concluded as follows at [85]:
In my opinion, justice can best be done by the one court resolving the whole justiciable controversy, in order to avoid both duplication and inconsistency. In the present context, the Family Court is the more appropriate court for that purpose, because the larger controversy, of which the smaller forms part, is a matter properly and primarily in the jurisdiction of the Family Court. It follows that the proceedings must be transferred to the Family Court.
I now turn to the submission of the defendants that the connecting factors favour refusal of the transfer application. I accept that the presence in the Territory of the majority of the potential witnesses (based on the affidavits filed so far), and the Deceased’s business records favour determination of the claim(s) in this Court. However, I am not persuaded that those connecting factors are such as to make this the “natural forum”. The crucial determinant of the forum issue is the question of the Deceased’s domicile, which must remain unresolved at this stage for the reasons given above. I also accept the submission of the plaintiff that the extra expense and inconvenience of litigating this case in Sydney will be marginal given modern transport and communication options. Mr Ellison SC pointed out that the plaintiff is in Sydney, one of the Executors lives in Brisbane, another in Sydney and two in Canberra. I also note that both sets of Senior and Junior Counsel are Sydney-based (with the possible exception of Mr Coleman SC who may have a connection with Orange in NSW).
It seems to me that the fact that there are currently two actions underway in two superior courts between the same parties and (subject to the notional estate claim) in relation to the same relief is the factor which must determine the decision required under sub-paras 5(2)(b)(i) and (iii) of the ACT Cross-vesting Act. I was informed from the bar table that no application has been made in the NSW proceedings to transfer that matter to this Court. When I asked Mr Coleman SC what would happen to the NSW proceeding if I did not make a transfer order, he said that those proceedings could remain but it would raise an issue for the plaintiff as to whether they would seek to litigate the notional estate issue in this Court (presumably under the cross-vested jurisdiction).
The claim for a family provision order, apart from the notional estate issue would not, it seems to me, create any real difficulty for either court, should it be required to decide the matter under the law of the other jurisdiction. There is no issue as to the eligibility of the plaintiff under either the Family Provision Act or the Succession Act. The test of whether the Deceased’s will made “adequate provision for the proper maintenance, education or advancement in life” of the plaintiff is the same under sub-s 8(2) of the Family Provision Act and sub-s 59(1)(c) of the Succession Act. The criteria considered by the Court in each jurisdiction, although expressed in slightly different terms are, in substance, the same (see sub-s 8(3) Family Provision Act and sub-s 60(2) of the Succession Act). While it would be open to this Court to determine a claim for a notional estate order (assuming the Deceased’s domicile is found to have been in NSW), I am of the strong view that it would be more appropriate for a statutory claim uniquely available in NSW to be determined by a Court of that State.
It is essential, for the reasons given by Brereton J in Valceski, that the potential duplication and inconsistency inherent in having two separate proceedings in
Supreme Courts of two jurisdictions be avoided. Having regard to the potential for it to be found that the Deceased’s domicile was in NSW with the resultant possibility of a notional estate order, I have concluded that it is more appropriate that these proceedings be transferred and determined by the NSW Supreme Court. It is in the interests of justice that the one court be seized of all issues in dispute between the parties and that this be achieved without further delay and expense. Notwithstanding the connecting factors with the Territory, and the failure of the plaintiff to have made full use of the cross-vesting options when she commenced her proceedings in NSW, it seems to me that the interests of justice here require that the two sets of proceedings be, in effect, consolidated. In adopting this course I am applying a “nuts and bolts” case management approach to permit the parties to resolve their disputes as quickly and efficiently as possible (see [39](k) above). Hopefully, that will also save costs. The only effective means of achieving these outcomes is to make the orders sought in the plaintiff’s Application in Proceeding.
Given the need for the transfer to be effected as quickly as possible it is not appropriate for it to be delayed by a contest over the costs of the Application in Proceeding. In my view, having regard to the complexities of the case, it is preferable that the court which finally determines the matter also decides the costs issue.
Orders of the Court
Accordingly, the orders of the Court are as follows:
(1) These proceedings be transferred to the Supreme Court of New South Wales pursuant to sub-paragraph 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT).
(2) The costs of the Application in Proceeding filed on 26 August 2019 be reserved.
| I certify that the preceding sixty-eight [69] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: 8 November 2019 |
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