Piatek v. Piatek & Siudy

[2007] QSC 326

[2007] QSC 326

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

Nos  3439 of 2005
      654 of 2007

RENATA ANNA PIATEK	Applicant
and
STANISLAW WALDEMAR PIATEK	First Respondent
and
MAGDALENA JOANNA SIUDY	Second Respondent

BRISBANE

..DATE 24/10/2007

ORDER

HER HONOUR:  These are brief reasons given for the assistance of the trial division of the Court should this matter come before the Court again.  Should either of the parties require more detailed reasons they should request them from my Associate.

The plaintiff and the first defendant - Renata Piatek and Stanislaw Piatek respectively - were married to each other and have been divorced with the decree absolute being granted in Poland in July 2007.  Not inconsistent with the way in which parties to such matters often behave, there is apparently before me not even agreement on the date in July when that occurred.

The parties also have litigation in this Court.  The first matter before me is an application by the first defendant, Mr Piatek, in regard to a matter which is S654 of 2007 which is a claim for declarations in respect of the equitable interest in two real properties which are registered in the name, as I understand it, of the second defendant, Magdalena Siudy.

As the Polish law has been explained to me - and it appears to be common ground - the question of division of the matrimonial assets is decided in Poland after the decree absolute is declared.  I interpolate that apart from the ownership of this property in Queensland, there appears to be very little relationship between the parties and Australia.

The plaintiff lives in the United States, the defendant lives in Poland where he has the custody of the only minor child of the marriage.  There are many assets outside of Australia.

...

The next step in the matrimonial proceedings in Poland, it appears, is the question of what date will be used to determine the assets of the marriage, after which the percentage to be divided between the parties will be determined.

The date to be determined by the Polish Court may well be a critical fact relevant to the decision to be made by this Court as to the equitable ownership of the properties in question.

The first defendant is contending before the Polish Court that the date at which the assets of the marriage should be determined is 2 January 2005. , That date precedes the selling of the properties in Queensland, the proceeds of which the plaintiff asserts a right to trace into property owned by the 2nd defendant.

There does not appear to be any dispute as to the ownership of the property as at 1 January 2005 or that the Polish Courts would not be able to take into account properties indisputably held by the parties wherever situated.

The plaintiff, I am informed - and the matter will be reduced to an affidavit - is asserting in the Polish court that the correct date to look at the property of the parties is the date of the decree absolute.  The date that the Polish Court chooses is a matter entirely within the jurisdiction within the Polish Court, and is a matter that it appears to me is ready for determination in that court.

This matter first came for hearing in the Polish Court in September 2007.  The transcript, which has been translated into English, appears to show that the plaintiff was avoiding service of the summons or petition in that matter, and the matter was adjourned but given a strict timetable with 14 days for her to file material.

I do not purport to have a comprehensive or sophisticated understanding of the Polish proceedings, save to say that the date will be decided by the Polish courts is the date on which the matrimonial property will be determined.

It does appear to me to be a critically relevant fact to the Queensland proceedings and that, given the imminence of the determination of that, it would be appropriate to stay for a very brief period the Queensland proceedings to allow the Polish Courts, as a matter of comity, to reach their conclusion.

The plaintiff does appear to have regularly invoked the jurisdiction of this Court but it would be inappropriate for jockeying to occur between the two Courts as to who should decide this question and it would be inutile for the Queensland Court to decide a question in ignorance of the fact to be determined in the Polish Court.

This is not a decision that the matter should be stayed permanently, or that the Queensland Court will not decide the matters in issue in these proceedings, but that there should be a brief stay to allow the question before the Polish Court to be determined given its relevance to the matters before this Court.

The first defendant sought in his submissions a period of three months for that stay; that does not appear to me to be excessive, particularly as it includes the whole of the vacation period, taking into account that that period would run until the 24th of January which is during the vacation. 

It is appropriate to grant the stay till the 1st of February 2008 to include the first week of the Court year but also to grant the stay only to that date or earlier order.  I give the parties liberty to apply on two clear days' notice.  That is particularly significant in this case, as a determination of that fact in the Polish Court will be relevant to the future conduct of this action.

Secondly, if there is evidence of either party seeking to delay the determination of the question in the Courts of Poland, that will be relevant to whether or not the stay should be continued or extended, and it may not be necessary to wait until the stay is about to run out for that to be brought back to the Court.

I say that particularly as the stay should not be used strategically by either party to gain an advantage or to disadvantage either party in the Polish proceedings, and both parties should have no interest in delaying the proceedings in Poland in order to gain or lose any advantage in the Queensland proceedings.

It is in my view, in the interests of both parties, to have the question of the date for the determination of the division of assets of the marriage to be determined as soon as possible, and as I have said, that can only be determined in the relevant Court in Poland which has jurisdiction in this matter.

I say that the reasons are brief out of deference to the detailed and very helpful submissions made on this by both parties, many of which are relevant to the question of whether or not be a permanent stay of these proceedings in Queensland, and of course no permanent stay has been granted.

...

HER HONOUR:  All of the applications will be adjourned to 31 January 2008.

...

HER HONOUR:  Parties are absolved from compliance with the Case Flow Management Practice Direction until 1 February 2008.

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HER HONOUR:  The costs will be the first defendant's costs in the cause.

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