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O'Donnell v O'Donnell

O'Donnell v O'Donnell

Case [2019] ACTSC 313 8 November 2019

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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 Family Provision Act 1969 (ACT) s 8 Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) paras 5, 9 Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ss 4, 5 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 BHP Billiton Limited v Schultz [2004] HCA 61; 221 CLR 400 British American Tobacco Australia Services Ltd v Laurie [2009] NSWSC 83 Hitchcock v Pratt [2010] NSWSC 1508 Paris King Investments P/L v Rayhill [2006] NSWSC 403 Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511 Taylor v Farrugia [2009] NSWSC 801 Valceski v Valceski [2007] NSWSC 440; 70 NSWLR 36 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading O'Donnell v O'Donnell

Details

AGLC: O'Donnell v O'Donnell [2019] ACTSC 313
Case: [2019] ACTSC 313
Decision Date: 8 November 2019

CaseChat Overview and Summary

The applicant, O'Donnell, sought an order to transfer family provision proceedings from the ACT Supreme Court to the NSW Supreme Court, as provided under the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT). The applicant argued that the transfer was in the interest of justice due to the existence of a potential notional estate, the commencement of proceedings in NSW seeking orders under the Succession Act 2006 (NSW), and the issue of domicile. The respondent, also O'Donnell, opposed the transfer on the basis that the notional estate was not properly before the court, and that the applicant had not demonstrated that the transfer was in the interest of justice. The ACT Supreme Court was required to determine whether the proceedings should be transferred to the NSW Supreme Court in accordance with the cross-vesting legislation.

The court considered whether the notional estate was properly before it and whether the transfer was in the interest of justice. The court found that the notional estate was not properly before the court as it had not been formally identified or quantified. However, the court also found that the transfer was in the interest of justice due to the existence of proceedings in NSW seeking orders under the Succession Act 2006 (NSW), and the issue of domicile. The court held that the transfer was appropriate to avoid piecemeal litigation and to ensure that all claims could be determined in a single proceeding.

The court further found that the applicant had demonstrated that the transfer was in the interest of justice. The court considered the potential for overlapping claims, the need for consistency in the determination of claims, and the need to avoid unnecessary costs and delays. The court held that the transfer was appropriate to ensure that all claims could be determined in a single proceeding, and that the interests of justice would be best served by transferring the proceedings to the NSW Supreme Court.

Accordingly, the court ordered that the proceedings be transferred to the NSW Supreme Court. The court noted that the transfer was in accordance with the cross-vesting legislation, and that the transfer was in the interest of justice. The court also noted that the transfer would not prejudice the rights of any party, and that the transfer would not cause any unnecessary delay or expense. The court held that the transfer was appropriate to ensure that all claims could be determined in a single proceeding, and that the interests of justice would be best served by transferring the proceedings to the NSW Supreme Court.

Orders

Orders of the court

See [69]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

O'Donnell v O'Donnell [2019] ACTSC 313

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Cases cited in this decision · 18 of 18 shown

Re: Estate of the late Evelyn Mary Dempsey
[2016] NSWSC 159 Para 1

…idual’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]:…
Gerald Brennan v Capital Weed Control Pty Ltd
[2013] ACTSC 78 Para 1

…uld 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:…
Hitchcock v Pratt
[2010] NSWSC 1508 Para 1

…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…
Taylor v Farrugia
[2009] NSWSC 801 Para 1

…ess 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]:…
British American Tobacco Australia Services Limited v Laurie
[2009] NSWSC 83 Para 1

…ntiff 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 t…
Eden v Amaca Pty Ltd
[2007] VSC 374 Para 10

…r 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 jurisdicti…
Valceski v Valceski
[2007] NSWSC 440

…ferred 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].…
Paris King Investments Pty Ltd v Rayhill
[2006] NSWSC 403 Para 1

…ntiff’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…
Young v Lalic
[2006] NSWSC 18 Para 1

…slation 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…
BHP Billiton Ltd v Schultz
[2004] HCA 61 Para 1

…he 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 applicati…
Hayward v Barratt
[2000] NSWSC 708 Para 2

…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 no…
Re Wakim; Ex parte McNally
[1999] HCA 27 Para 1

…a 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 cons…
Henry v Henry
[1996] HCA 51

…n 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 t…
Bourke v State Bank of New South Wales
[1990] HCA 29

…rs 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 appr…
Fremlin v Fremlin
[1913] HCA 25

…eated 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)…
Inland Revenue Commissioners v Plummer
[1979] UKHL TC_54_1

…gh 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 1…
[1987] AC 460
[1987] AC 460

…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 N…
[1932] NZLR 125
[1932] NZLR 125

…in 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 b…

Legislation cited in this decision · 8

Succession Act 2006 (NSW)
59, 60, 63, 64, 88 6 mentions (from Para 1)
Domicile Act 1982 (Cth)
10, 3 3 mentions (from Para 1)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS)
4, 5 3 mentions (from Para 1)
Court Procedure Act 2004 (ACT)
5A 2 mentions (from Para 1)
Family Provision Act 1969 (ACT)
8 2 mentions (from Para 1)
Domicile Act 1979 (NT)
1 mention
Domicile Act 1981 (WA)
1 mention
Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT)
1 mention (from Para 1)