Oldham & Krantz
[2024] FedCFamC1F 293
•7 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Oldham & Krantz [2024] FedCFamC1F 293
File number(s): MLC 8578 of 2019 Judgment of: STRUM J Date of judgment: 7 March 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband filed an Application in a Proceeding seeking to join family members of the wife in Country H and declarations that they hold real properties there on trust for the wife and/or him – Where the proceedings have been on foot since 2019 and the matter is set down for a trial commencing in less than three weeks’ time – Where orders in relation to valuation of the properties in Country H had been made as early as 2021 – Where there is no admissible evidence in relation to the valuation of the properties in Country H – Where there is no evidence in relation to the legal principles relating to real property in Country H – Where there is no evidence of whether Country H law recognises equitable interests in land - Where it is unclear if the Application in a Proceeding has been served upon the proposed third parties – Moçambique rule applied – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 42(2)
Marriage Act 1961 (Cth)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496
Corvisy v Corvisy [1982] 2 NSWLR 557
Dagi v BHP Co Limited (No 2) [1997] 1 VR 428
Damberg v Damberg & Ors [2001] NSWCA 87
Elder v Queensland [1997] 141 FLR 467
Inglis v Commonwealth Trading Bank (1972) 20 FLR 30
Jones v Queensland [1998] 2 Qd R 385; (1997) 141 FLR 467
Davies, Martin et al, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 10th edition, 2019)
Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 7 March 2024 Place: Melbourne The Applicant: The Applicant appeared in person The First Respondent: The First Respondent appeared in person The Second Respondent: The Second Respondent appeared in person ORDERS
MLC 8578 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR OLDHAM
Applicant
AND: MS KRANTZ
First Respondent
MS WELKER
Second Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
7 MARCH 2024
THE COURT ORDERS THAT:
1.There be Orders in accordance with the Minute of Proposed Consent Orders dated 07/03/2024, marked Annexure “A” and attached hereto AND IT IS DIRECTED that such Minute remain upon the Court file.
2.The Applicant Husband’s oral application seeking leave to amend his Application in a Proceeding filed 22 December 2023 be dismissed.
3.The Applicant Husband’s Application in a Proceeding filed 22 December 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oldham & Krantz has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Delivered Ex TemporeSTRUM J:
These proceedings were instituted in 2019 and were finally listed for trial commencing on 25 March 2024, in less than three weeks’ time. The matter is in a deplorable state of preparation, as I indicated in exchanges with the applicant husband, the first respondent wife, and the second respondent, who all appear in person. However, proceedings in this Court are adversarial, not inquisitorial, and in the absence of an adjournment application – and there is none – the matter will proceed on the listed trial date.
An issue in these proceedings, at least since it came into my docket in December 2021, has been the husband’s claim – not the subject of any application until 22 December 2023 – that real properties held by family members of the wife in Country H is somehow held on trust for her and/or him. I note that I made orders as early as May 2022, nearly two years ago, in relation to those properties.
On 22 December 2023, at or about midday, an Application in a Proceeding was filed, purportedly by the second respondent, who is the husband’s new partner. It seeks to join to the proceedings two of the wife’s family members in Country H; declarations that they hold two pieces of real estate there on trust for the applicant husband and the first respondent wife; that the properties be sold, with the husband having the conduct of those sales; and that the proceeds of the sales be repatriated to Australia to form part of the asset pool available for division between the husband and the wife.
Notwithstanding that the Application in a Proceeding was filed by the husband’s new partner, who is the second respondent, the supporting affidavit was sworn and filed by him. It is difficult to see what standing the second respondent has to seek relief which does not concern her; there is no evidence by her in relation thereto. She has indicated to the Court today that she does not pursue that application. However, the applicant husband seeks to be substituted for the second respondent, and I shall treat that as an oral application by him for leave to amend the Application in a Proceeding.
In considering whether to grant leave, it is necessary to consider the utility of so doing, as well as the issue of delay. Turning first to the issue of delay; as I have indicated, these proceedings were issued in 2019 and were finally listed for trial to commence later this month. It is a matter which needs to be finalised one way or the other, some five years after the parties separated. There is no evidence that the Application in a Proceeding filed on 22 December 2023 has been served on the proposed third parties in Country H. Even if I were minded to grant leave, they reside overseas and would be entitled to seek legal representation in Australia, which would likely lead to an adjournment.
The High Court of Australia has made it abundantly clear, including in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, that in this day and age, the Court must consider not only the parties, but also the business of the Court and the interests of other litigants who await hearings. If the trial were to be adjourned, it is unlikely that another matter could be found or prepared to run in under three weeks’ time to fill the four-day void which this case would leave. Another week would need to be found, in which to relist this matter, at the expense of other matters presently awaiting a trial date. I place weight on these considerations.
Turning to the utility of the proposed amendment; the husband, if the amendment were granted, seeks a declaration that the two Country H properties are held on trust for the wife and / or him, either entirely or in part. It is not clear from the terms of the declaration sought. However, he adduces no evidence that Country H law even recognises equitable interests, separate from legal interests, in land. Section 42(2) of the Family Law Act 1975 (Cth) (“Act”) provides that, where it would be in accordance with the common law rules of private international law to apply the laws of any country or place, including a State or Territory, the Court shall, subject to the provisions of the Marriage Act 1961 (Cth), apply the laws of that country or place.
However, as is stated in Nygh’s Conflict of Laws in Australia, 10th edition, commencing at paragraph 3.117:
[W]here proceedings involve foreign land and questions relating to the title of foreign land, a series of special principles exists with regard to questions of jurisdiction, whether or not the defendant to the proposed proceedings is a foreign or a local defendant.
The modern rule denying jurisdiction in respect of land situated abroad stems from the decision of the House of Lords in British South Africa Co v Companhia de Moçambique.
That case is now regarded as authority for the proposition that an English court and, by extension, an Australian court, will not exercise jurisdiction in respect of the title to, or possession of, land situated abroad. This principle forms part of the common law in all Australian jurisdictions, other than New South Wales and the Australian Capital Territory.
At paragraph 3.119, the learned authors of Nygh’s Conflict of Laws in Australia refer to the decision of the Supreme Court of the Australian Capital Territory in Inglis v Commonwealth Trading Bank (1972) 20 FLR 30. There, the Supreme Court of the Australian Capital Territory was asked to make declaration that the defendant bank had no power of sale over, and no power to deal with, land situated in Tasmania, which the plaintiffs had mortgaged to the defendant. Woodward J held that the declaration sought by the plaintiff raised a question affecting the title to the Tasmanian land and, following the Moçambique rule, that the forum, namely, the Supreme Court of the Australian Capital Territory, lacked jurisdiction in relation thereto.
This proposition was also applied by the Supreme Court of Queensland in Elder v Queensland [1997] 141 FLR 467 and Jones v Queensland [1998] 2 Qd R 385 to justify that court’s refusal to hear Aboriginal native title claims to the sea and seabeds beyond three nautical miles from the coast of Queensland. The court held that because the plaintiff’s claims concerned title to, or possessory rights over, underwater land beyond the territory of Queensland, which ended at three nautical miles from the shore, they were beyond the jurisdiction of that court by virtue of the Moçambique rule.
In Corvisy v Corvisy [1982] 2 NSWLR 557, the plaintiff sought an order in the Supreme Court of New South Wales restraining the defendant from entering upon certain premises in Canberra. McClelland J declined to make the order sought, holding that the Court had no jurisdiction in proceedings founded upon the title to, or the possession of, real property outside its territorial jurisdiction.
In Dagi v BHP Co Limited (No 2) [1997] 1 VR 428, the plaintiffs, who were citizens of Papua New Guinea, were affected by the discharge of byproducts of a copper mine, owned by the Australian defendant, into a river in Papua New Guinea. They sued in the Supreme Court of Victoria, alleging trespass, nuisance, and negligence. Byrne J held that the trespass and nuisance claims were not justiciable because of the Moçambique rule.
His Honour said at 442:
The Court will refuse to entertain a claim where it essentially concerns rights, whether possessory or proprietary, to or over foreign land, for these rights arise under the law of the place where the land is situated and can be litigated only in the courts of that place. The claim must not merely concern those rights; it must essentially concern them. This is because the rights must be the foundational gravamen of the claim.
Lastly, I refer to the decision of the New South Wales Court of Appeal in Damberg v Damberg & Ors [2001] NSWCA 87, and, in particular, the decision of Heydon J, commencing at [119] of his Honour’s judgment. His Honour there said that “[t]he proposition that where foreign law is not proved it will be presumed to be the same as the lex fori is amply supported”. His Honour continued at [120]:
However, there are numerous instances where the courts have refused to assume that foreign law is the same as the lex fori, and some where learned authors have opposed that course. It is not easy to classify the exceptions by reference to principle, and initially it is convenient to do so by jurisdiction and chronologically.
I do not propose to traverse all of the authorities and all of the jurisdictions that Heydon J considered. However, at [126] his Honour referred to the decision of BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496 at 503, where Hunt J said the presumption “is not of universal application.” Hunt J continued:
According to Sykes & Pryles, Australian Private International Law, at p 145, in the United States, for example, the application of the lex fori where the foreign law is not proved depends upon whether it is `in the interests of justice’ to do so. In Canada, it seems, the local court will not assume that there has been introduced into the foreign law the statutory variations and additions made to the common law by the lex fori: Conflict of Laws in Australia, Nygh, 2nd ed, at p 300.
In my view, the application of the presumption is intended to operate against, not in favour of, the party whose obligation it is to prove the foreign law, so that he is deprived of the benefit of a right or exemption given by that foreign law, but not by New South Wales law, if he does not establish that foreign law in the proper way. It would, in my opinion, be an absurd interpretation of the requirements of Pt 10, r 5 (that non-personal service is to be effected) which enabled a judgment creditor, by mere non-disclosure on the ex parte application for registration, to obtain the benefit of a more advantageous New South Wales provision as to service, which is in fact not available in the foreign jurisdiction in which service is to be effected. Such an interpretation would render the requirement in r 5 otiose.
Heydon J continued at [127]:
In Elders IXL Ltd v Lindgren Pty Ltd (1987) 79 ALR 411 at 415, Fox J considered whether the applicant seeking to serve a cross claim outside the jurisdiction had a prima facie case within the meaning of Ord 8 r 2 (2)(c) of the Federal Court Rules.
Fox J there said:
The question whether a prima facie case has been established (r 2(c)) would need further consideration, particularly because the full contract is not before me, and because I have nothing before me as to Japanese law, assuming it to be the proper law. It was put that I should assume, at least for present purposes, that it is the same as the law of Australia, or, as it would have to be put, the law of an Australian State or States (not specified). If the matter were in due course contested, and Japanese law proved, it may appear that there never was a prima facie case. The problem starts with incomplete knowledge of the contract (there may indeed have been more than one) but my present view is that the requirement that there be a prima facie case requires proof going towards the establishment of the matters relied on, and people in Japan are not to be made liable or threatened with liability on the basis of the law of an Australian State or States, when they have, expressly or by operation of law, made Japanese law applicable.
In my view, the rule in Moçambique does apply. In circumstances where I am asked to deal with land in Country H and the registered proprietors of that land are not presently within the jurisdiction of this Court and not amenable to orders made against them in personam, the rule in Moçambique precludes the claim being made. Further, no evidence, including of an expert nature, has been by the applicant husband in relation to the law or the legal system relating to ownership of land in Country H and, in particular, whether it recognises equitable interests, separate to legal interests.
In the circumstances, taking into account the absence of any utility in the proposed amendment sought by the husband, to substitute him for the second respondent as the applicant, and also taking into account the inordinate delay and the likely inevitable adjournment that would follow, I dismiss the husband’s oral application to amend the Application in a Proceeding filed purportedly by the second respondent on 22 December 2023 and, accordingly, I dismiss that Application.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 7 March 2024