Price v Schultz
[2009] SASC 76
•24 March 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PRICE v SCHULTZ
[2009] SASC 76
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
24 March 2009
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - JURISDICTION AND AVAILABILITY OF REMEDY GENERALLY - IN GENERAL
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT COURT
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - OTHER MATTERS
Appeal from decision of Judge dismissing appeal from interlocutory ruling by District Court Judge - defendant and appellant purchased property in 1983 - plaintiff and respondent commenced cohabiting with defendant in 1994 - lived as de facto couple until deterioration of relationship in 2006 - defendant left property - following breakdown of settlement negotiations defendant gave notice of intention to return to property - plaintiff sought urgent interlocutory relief for grant of injunction restraining defendant from residing at property - injunction granted and appeal from ruling dismissed by Judge - whether jurisdiction of District Court to grant injunction enlivened - whether if enlivened, prima facie case made out - whether balance of convenience against grant of injunction.
Held: injunction granted by District Court Judge should be set aside - undertaking of defendant not to move back to property until a month after conclusion of taking of evidence in District Court trial should be accepted - cross undertaking by plaintiff as to damages should be given.
District Court Act 1991 (SA) s 5, s 8, s 30 and s 31; Domestic Partners Property Act 1996 (SA) s 9; Family Law Act 1975 (Cth) s 114, referred to.
Parry v Crooks (1981) 27 SASR 1; Silverstone v Silverstone [1953] P 174; Davis v Johnson [1979] AC 264; Broadmoor Special Hospital Authority v Robinson [1999] EWCA 3606; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Page v Central Queensland University [2006] QCA 478, considered.
PRICE v SCHULTZ
[2009] SASC 76GRAY and SULAN JJ.
This is an appeal from a decision of a Judge of this Court dismissing an appeal from an interlocutory ruling by a District Court Judge.
This appeal calls for the consideration of questions arising out of a de facto relationship. The appeal also raises an issue as to the extent of jurisdiction of the District Court to grant injunctions. Permission to appeal has been granted.
Background
The defendant and appellant, Robert Gareth Price, is now aged 61 years. In 1983 he purchased a property at Torrensville. He has remained the sole registered proprietor since that date. The property is mortgaged. Following the purchase of the Torrensville property it became his home.
In or about 1994 the defendant commenced cohabiting with the plaintiff and respondent, Yvonne Margaret Schultz. They lived at the Torrensville property in a de facto relationship for more than 10 years until July 2006. The relationship between the parties deteriorated sometime prior to July 2006.
Prior to July 2006 the parties entered into discussions about their separation and a division of property. In July 2006 the defendant left the Torrensville property. In an affidavit filed by the defendant he explained the circumstances of his leaving:
In or about late June 2006 I travelled to Europe for four weeks. Whilst I was overseas the Plaintiff attended at Relationships Australia for counselling. Upon my return from Europe we attended Relationships Australia together on 21 July 2007. It was at these counselling sessions that discussions began to take place about the division of assets and occupation of the Torrensville Property.
The plaintiff asserted that she wished to mediate a speedy settlement. I was in agreement with this approach. The plaintiff and I both agreed that it would be difficult to negotiate a settlement when we were both residing in the same premises. The plaintiff indicated that she would only leave the Torrensville Property “in a body bag” and so I made the decision to move out of the property on a temporary basis to allow negotiations to take place. I did this in good faith.
I moved in with my son on 23 July 2006. My son resides in what can best be described as a housing trust ‘duplex’ at 10 Bathurst Street Athol Park (“the Athol Park Property”). The Athol Park Property is a small two-bedroom house and when I left the Torrensville Property I left with only my personal belongings and some clothing, indicating the temporary nature of my move. All of my furniture and other belongings remain at the Torrensville property to this date.
[Emphasis added]
The negotiations between the parties broke down. The plaintiff then issued the within proceedings on 19 July 2007. This was shortly before the expiration of a relevant time limit. By her Statement of Claim the plaintiff sought orders that the defendant discharge the mortgage over the Torrensville property and transfer that property to her absolutely. She also claimed one half of the defendant’s superannuation entitlements and a quarter interest in a family trust that the defendant had created many years earlier for the benefit of his children from an earlier marriage.
The service of the proceedings, apparently without any prior warning, caused the defendant to instruct his solicitors to write to the plaintiff in the following terms:
We acknowledge receipt of your client’s proceedings, which were served on us on 19 July 2007.
My client instructs me that he moved out of his property at 64 Clifford Street Torrensville in July 2006 on a temporary basis on the understanding that a settlement would be able to be negotiated with your client. For the past twelve months he has been residing with his son at 10 Bathurst Street Athol Park. The property can best be described as a small Housing Trust duplex and my client’s room is small and unsuitable for housing him and his belongings on a long-term basis.
During the last twelve months my client has had numerous problems at the Athol Park property, including repeated nightly crying from young children on the opposite side of the common bedroom wall, repeated disturbances caused by the drug dependency of that particular neighbour which has required Police intervention and regular fighting from neighbours directly across the road due to alcohol abuse.
I am instructed that there has also been a need for extremely tight security arrangements and that my client has not been able to leave his vehicle parked in the street. My client also instructs me that he has also had to spend additional time travelling to and from his Thebarton office, which has incurred him extra cost.
My client also instructs me that the Torrensville property is strategically placed for most of his private activities, particularly visiting his three grandchildren and travelling to the airport. Whilst living in the Athol Park property I am instructed that my client has been unable to pursue his keen interest in gardening, which has been detrimental to his health, and that he has been unable to entertain friends. I am also instructed that my client’s son has a new partner and that the present living arrangements are no longer tenable.
In that regard my client has instructed me to put your client on notice that he intends to move back into his property at 64 Clifford Street Torrensville within seven (7) days of the date hereof.
My client instructs me that he wished to make it clear that your client is not expected to vacate the premises and that my client is willing to allow her to continue residing in his property.
On 24 July 2007 the plaintiff emailed the defendant to enquire whether he would collect his possessions from the Torrensville property. The defendant replied by email on the same date as follows:
No that will not be possible. In case you are unaware I have formally advised your solicitor that I intend returning to MY house within 7 days. But do not panic, in my normal good-natured manner I am quite prepared for you to remain as a resident.
The defendant explained by affidavit that he gave notice of his intention to return to the Torrensville property based on a “sense of fairness rather than just moving back into the property”. In his affidavit, the defendant explained his reasons as follows:
I have several reasons for wanting to move back into the Torrensville Property:
I only ever left the Torrensville Property so as to allow negotiations to take place between the plaintiff and I in the hope that an amicable settlement agreement could be reached. After 12 months of negotiations an agreement was reached between us in May 2007, but this agreement fell over in or about June 2007 due to a technicality. The plaintiff then issued these proceedings. I have been advised that these proceedings may take in excess of 12 months and I am not willing to continue to live in ‘temporary’ accommodation for the duration of that period.
I have imposed on my son for over 12 months, despite the intention of my moving into his residence being temporary. My son refuses to take any payment from me for lodging with him and I feel it is unfair to impose upon my son any longer.
My presence at my son’s property is affecting his ability to develop his relationship with his current partner of 18 months.
My son’s residence is a small property in a low socio-economic area. I have been residing in a small bedroom of approximately 6 square metres, which is unsuitable for housing me and my belongings on a long-term basis. There have also been several security issues and I do not feel safe parking my car on the street.
During the past twelve months I have encountered numerous problems at the Athol Park property:
The residence next door shares the wall of my bedroom and I have been disturbed nightly by the crying and screaming of the children in the neighbouring property.
There have also been repeated disturbances caused by the drug‑dependency of this neighbour, which have required police intervention.
The occupants of the property across from my son also abuse alcohol on a regular basis which has lead to regular fighting and disturbances in the street.
The Athol Park Property [is] much further away from my friends and my work, thereby impacting on my social life and increasing the time and cost to travel to and from work each day. I travel as part of my employment on a regular basis and the Torrensville Property was located close to the airport, whereas I am significantly further away at the Athol Park property.
Residing with my son at the Athol Park Property has impacted on my social life and his. I am unable to entertain my friends at the Athol Park Property due to the lack of space. My son is also in his first serious relationship and has found it difficult to entertain his partner and spend quality time with her given my presence in his small property.
I am keen gardener and miss tending to the gardens in the Torrensville Property. I believe that this has been detrimental to my health.
Ever since I purchased [the] Torrensville Property I have been friends with an elderly couple who live across the street. The husband died over two years ago and the wife is in poor health. She has few friends and no family in Australia and relies heavily on me for support both manual and moral support. The required support is increasing but has been made more difficult for me whilst residing with my son.
I maintain that as the registered proprietor of the Torrensville Property I have the right to the free enjoyment of that property to the exclusion of all others, including the Plaintiff.
These events led the plaintiff on 3 August 2007 to seek urgent interlocutory relief as follows:
That the defendant be restrained and an injunction be granted restraining the defendant from residing at or continuing to reside a premises known as 64 Clifford Street Torrensville (“the premises”) being the whole of the land comprised and described in Certificate of Title Register Book Volume 5836 Folio 152 until the substantive issue the subject of these proceedings in is finalised or until further order (The plaintiff’s claim is pursuant to Part III of the Domestic Partners Act 1996 by Summons filed herein on 19 July 2007).
…
That the defendant continue to pay the loan with respect to the premises secured by mortgage registered against the title.
That the defendant be restrained and an injunction granted restraining the defendant from further encumbering the property in anyway including but not limited to extending the current loan, by a mortgage lien charge or in any manner whatsoever until further order.
The plaintiff in a supporting affidavit asserted that she was at that time in poor health. She outlined the nature of her problems. These included an assertion that she had suffered a major depressive disorder as a result of the breakdown of her relationship with the defendant and had consulted a psychologist to treat that illness. She asserted that her only income was through Government benefits and that she had little or no assets.
The plaintiff deposed that, in her view, the defendant was wealthy, having assets valued in excess of $1.6 million. In a subsequent affidavit, the defendant’s assets were detailed. Apart from the Torrensville property and a superannuation entitlement those assets consisted of shares and a small amount of cash to a total value of about $250,000. The defendant apparently had a gross income of little more than $100,000 a year.
The plaintiff further claimed that it would be difficult for she and the defendant to reside in the one premises and asserted that she was not psychically fit to move. The plaintiff has one son who is said to be schizophrenic. The plaintiff’s son visits her at the Torrensville property. Apparently he has his own two bedroom premises where he lives alone.
The plaintiff exhibited to her affidavit a report dated 25 July 2007 from Ms Thornton, a clinical psychologist. The plaintiff was seen by Ms Thornton on 19 January 2007, at which time Ms Thornton assessed her as having psychological symptoms that met the criteria for a diagnosis of a major depressive disorder. These symptoms, it was said, resulted from the breakdown of her relationship with the defendant and the ongoing conflict about the property settlement. It was Ms Thornton’s opinion that if the defendant returned to the Torrensville home and shared those premises with the plaintiff it was likely that this that would significantly aggravate the plaintiff’s depressive illness and that she would cope very poorly. This, it was said, would then compound her physical complaints. There was no suggestion that the plaintiff had been referred for psychiatric opinion or treatment
It is to be observed that the plaintiff did not depose to any fear that she would be in some way unable to pursue, wholly or at all, her claims for a property settlement. Ms Thornton did not express an opinion on this topic. It is also relevant that neither the plaintiff nor Ms Thornton addressed the possibility of the plaintiff being able to live with her son in his two bedroom accommodation. Apart from the assertion that she was physically unfit to move this question was not addressed.
As earlier noted the defendant had, by July 2007, resided for a year in the second bedroom at his son’s premises. The defendant’s son lived with his partner at those premises.
The decision of the District Court Judge
It is against the above background that the District Court Judge made the following orders:
The defendant be restrained and an injunction be granted restraining the defendant from residing at or continuing to reside a premises known as 64 Clifford Street Torrensville (“the premises”) being the whole of the land comprised and described in Certificate of Title Register Book Volume 5836 Folio 152, or attending at the premises without the written consent of the plaintiff until the substantive issue the subject of these proceedings in is finalised or until further order
That the defendant continue to pay the loan with respect to the premises secured by mortgage registered against the title.
The defendant be restrained and an injunction granted restraining the defendant from further encumbering the property in anyway including but not limited to extending the current loan, by a mortgage lien charge or in any manner whatsoever until further order.
The defendant continue to pay all such rates and charges attached to the property by virtue of the fact that he remains the registered proprietor thereof until further order.
The defendant pay the costs of this application.
The parties may apply for further orders or directions.
The District Court Judge considered that she had power to grant an injunction pending the final determination of the action pursuant to section 30 of the District Court Act 1991 (SA). That section provides:
The Court may, on such terms as appear just, grant an injunction or make any other order that may be necessary to preserve the subject-matter of an action intact until the questions arising in the action have been finally determined.
The District Court Judge then discussed that power in the following terms:[1]
[1] Schultz v Price (2007) 251 LSJS 82; [2007] SADC 98 at [21].
The District Court has the power to grant an injunction pending the final determination of proceedings. That power is not unlimited. There must be a proper basis for a court to grant equitable relief in the nature of an injunction. It is said that an applicant must identify the legal or equitable right which it is sought to protect (or the wrong which it is sought to prevent), pending the final determination of the action between the parties: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199. The injunction sought must arise out of and be incidental to the action, and the applicant should be able to demonstrate that there are sufficiently plausible grounds for the granting of the final relief sought, such that the applicant’s interests might be jeopardised if the interlocutory relief is not granted: Meagher, Gummow & Lehane’s Equity Doctrines and Remedies 4th Edition, Meagher Haydon and Leeming. In addition, the Court may have to consider whether on balance, it is in the interests of justice having regard to the circumstances of both parties, to grant the injunction sought.
The District Court Judge then considered the power of the Court to grant an injunction in the circumstances that she described as being “of the kind described in Parry v Crooks”. Earlier in her reasons she had identified the relevant observations from the judgment of King CJ as follows:[2]
[2] Parry v Crooks (1981) 27 SASR 1 as cited in Schultz v Price (2007) 251 LSJS 82; [2007] SADC 98 at [25].
…in an appropriate case, the power to grant an injunction would be used by a court in order to restrain molestation, harassment, abuse or intimidation designed to deter a party from pursuing a legal remedy.
The District Court Judge proceeded to determine the application in accordance with this principle and concluded:[3]
[3] Schultz v Price (2007) 251 LSJS 82; [2007] SADC 98 at [41].
I have also considered the plan and the nature of the layout of the premises, the fact that there is only one toilet and one bathroom, in the context of the state of affairs between the parties. I note that the plaintiff would be required by the defendant to move out of the main bedroom which the defendant seeks to occupy, and into the second bedroom. I find that it would be awkward and perhaps impossible for the parties to live separately and apart in the premises, with a real possibility of verbal clashes, frustrations and consequent stress on both parties. Having regard to the fragile state of the plaintiff’s health, I find that it is probable that there would be negative health consequences for the plaintiff, should the defendant return to the premises and endeavour to live there together with but separately from the plaintiff. I have reached this conclusion notwithstanding the defendant’s evidence that he works long hours and spends time interstate as part of his job, by which evidence it seems that the defendant sought to infer that his presence in the premises would not impact hugely on the plaintiff’s daily living.
The plaintiff says that in consequence of the defendant’s return, she would be forced to move out of the premises.
On what is before me, the defendant is in a better financial position than the plaintiff and therefore financially well able to find alternative accommodation pending the resolution of the proceedings should he no longer be able to reside with his son, as he has been doing since late July 2006. There was no evidence that the defendant has any physical or health issues that would handicap him in moving to new accommodation.
On the present evidence, I find that it would be difficult for the plaintiff to move out of the Torrensville premises to other accommodation pending resolution of the proceedings, given the state of her health and her physical disabilities.
I note that the defendant’s notice of intention to return to live in the Torrensville premises was given approximately 5 days after the plaintiff commenced proceedings under the Domestic Partners Property Act. The conclusion that this move by the plaintiff was designed to intimidate the plaintiff, force her into a settlement that suited the defendant or deter her from continuing with the proceedings in this Court, is open.
The District Court Judge then added:[4]
Here, there is evidence that the plaintiff’s health is likely to be affected should the defendant return to live in the house together with, but separately and apart from her. The plaintiff would be disturbed in her use and occupation of the house, both initially, and on an ongoing basis. There would be a real risk of ongoing awkwardness and unpleasantness between the parties if they were to both live at the premises. I consider that this would amount to persistent disturbance and thus harassment of the plaintiff, particularly given that she has been living alone at the premises, unhindered by and with the agreement of the defendant, for more than one year. Such harassment would, in the circumstances, amount to a pressure upon the plaintiff, which could deter her from the proceedings that she has commenced in this Court under the Domestic Partners Property Act and may well be designed to do so. The likely harassment and pressure would be sufficient to form the basis for the grant of an injunction against the defendant consistent with the approach of the courts in other matters such as Silverstone, Nguyen v Scheiff and Parry v Crooks.
The ultimate conclusion of the District Court Judge, expressed under the heading “Balance of Convenience”, was as follows:[5]
I find that, should the defendant return, the plaintiff’s life would be disrupted, and she would be harassed. The defendant’s occupancy would have a very negative impact on the plaintiff. She might be deterred from continuing the proceedings in this Court. I have considered all the matters that were put to me and now conclude that the balance of convenience is in favour of the plaintiff’s application.
[4] Schultz v Price (2007) 251 LSJS 82; [2007] SADC 98 at [48].
[5] Schultz v Price (2007) 251 LSJS 82; [2007] SADC 98 at [54].
The Initial Appeal
The defendant appealed to a Judge of this Court complaining that the jurisdiction to grant an injunction had not been enlivened in the proven circumstances and that, in particular, the findings of fact of the District Court Judge set out above were not open on the evidence.
On 19 February 2008 the Judge dismissed the appeal concluding:[6]
In my view, it was open to the judge to conclude, as she did, that the appellant’s return to the house while the proceedings are pending would place the respondent in a vulnerable position with consequent effects on her ability to pursue the proceedings. Subject to an assessment of the balance of convenience, I think it was open to the judge to make an interlocutory order to prevent the occurrence of circumstances in which harassment or intimidation of the respondent would deter her from pursuing the remedies provided by the Domestic Partners Property Act 1996.
I am also of the view that the judge was correct in holding that the balance of convenience is in favour of the respondent.
It is of considerable relevance that the appellant is the owner of the property and that he has reasons apart from the litigation to return there. On the other hand, the respondent has lived in the house for approximately 13 years. She suffers from poor health and she has quite limited means to move elsewhere. The appellant has substantial financial means. The litigation is proceeding on its way towards a hearing and the appellant himself conceded, before leaving the premises, that hopes of settlement would be diminished if the parties continued to live together.
[6] Price v Schultz (2008) 253 LSJS 246; [2008] SASC 34 at [30]-[32].
The Appeal to the Full Court
Before coming to discuss the issues on the appeal it is relevant to point out that there has been a delay of almost 12 months between the judgment of the Judge of this Court and this appeal being heard. Permission was sought and granted in September 2008. No explanation has been offered to explain the delay. It is evident that if there had been an application for an urgent hearing the appeal in all probability would have been determined in the earlier months of 2008. The consequence of the delay is two‑fold. The plaintiff has continued to reside in the property for a further 12 months and the trial of the proceedings is imminent, to be heard in the month of March 2009.
There is a further matter of note. On the hearing of the appeal, the defendant informed the Court through his counsel that even if successful on this appeal, he would not seek to exercise any right to return to the Torrensville property until one month after the conclusion of the taking of evidence in the District Court trial. His counsel explained that there were instances of long delays between trial and judgment in the District Court and his client did not want to be put in the position of waiting as was suggested almost 15 months before being able to return to the Torrensville property. In a sense this was a veiled criticism of the District Court at the risk of a long delayed judgment and could be seen to be an approach that would put undue and unfair pressure on a trial judge. On the other hand it might be observed that the defendant appears to have acted responsibly in regard to the present position of there being an imminent trial.
On appeal to this Court the plaintiff in substance advanced the same submissions that had been made to the Judge of this Court under appeal. It was initially contended that the Court had no jurisdiction to grant the injunction. However, on being pressed, counsel for the defendant accepted that the Court had the equitable jurisdiction of the Supreme Court and that this jurisdiction included a jurisdiction in the terms described by King CJ in Parry v Crooks.[7] The submission advanced was that the jurisdiction was not enlivened by the evidence supporting the plaintiff’s application. If enlivened it was said that a prima facie case had not been made out and that on the evidence the balance of convenience was against a grant.
[7] Parry v Crooks (1981) 27 SASR 1.
The District Court has jurisdiction to grant injunctive relief to protect property interests pending the resolution of a dispute in court. Shortly put, it was the plaintiff’s case that she was entitled to reside to the exclusion of the defendant in the Torrensville property and she wished to exercise that right pending the trial. In the present case, the plaintiff has the statutory entitlement to pursue a division of property under the Domestic Partners Property Act 1996 (SA). In our view, the Court has the jurisdiction to protect that property right pending trial.
It is also apparent that the plaintiff resided in the Torrensville property from July 2006 until July 2007 pursuant to an arrangement with the defendant. This arrangement amounted, on the probabilities, to a licence to the plaintiff to reside alone at the Torrensville property. In July 2007 the defendant sought to vary the terms of the licence. The circumstances are such that it is arguable that an injunction could be granted to prevent the defendant from seeking to vary the licence until the property claims are resolved. The District Court has jurisdiction to protect the plaintiff’s rights in respect of that licence pending trial.
The District Court also has jurisdiction with respect to matters arising under the rubric of the administration of justice. This would appear to be the jurisdiction exercised by the District Court Judge; that is, a jurisdiction based on her finding that the plaintiff would be impeded in pursuing her cause of action through the courts.
On appeal, as earlier observed, the defendant advanced further submissions that the evidence before the District Court Judge did not support the grant of such an injunction, either in terms of making out a prima facie case or alternatively on the balance of convenience. In our view there is substance to the defendant’s complaints in this respect. It is to be observed that the evidence of the plaintiff before the District Court Judge did not specifically assert that she would be prejudiced and in some way disabled in pursuing her property settlement claim. It is of relevance that her clinical psychologist did not suggest that she would be impaired in this respect. It would appear that the plaintiff has been able to pursue this claim notwithstanding her depressive symptoms for more than two years with an impending trial in March 2009. It is possible to infer that were the plaintiff to share the Torrensville property with the defendant she would cope poorly. However, such a finding falls short of providing an adequate basis for concluding that on the probabilities the plaintiff’s ability to pursue litigation would be restricted or impaired or that she would be unable to proceed at all.
No attention appears to have been given by the District Court Judge to the possibility that the plaintiff could move and live with her son. Although her son’s accommodation may not be as comfortable as the Torrensville accommodation, on the face of the papers there is no reason, with appropriate assistance, why the plaintiff could not have physically moved. The suggestion that she could not move accommodation was not the subject of any particular explanation.
It is implicit in the reasons of the District Court Judge that she accepted the plaintiff’s evidence that the defendant was wealthy or at the very least, of means. In our view, the plaintiff’s assertions of the defendant’s wealth need to be carefully examined. Leaving aside the superannuation entitlements of the defendant and the Torrensville property, the defendant has assets said to be worth about $250,000 and an income of about $100,000. Recent events have shown how much at risk persons of modest means can be. The defendant’s available assets consist of shares of the company that employed him. The recent volatility of the share market places the valuation of those assets in question. In addition, the defendant’s assets were subject to the contingency of the plaintiff’s claims. If the plaintiff succeeds in her claim, the defendant will be left with few assets. It is to be recalled that he is now aged in his sixties and it is reasonable to be inferred that he is nearing the end of his working life.
The plaintiff asserted that the defendant was returning to the Torrensville premises in order to break her and force her to accept a particular settlement proposal. The defendant denied this assertion. In her reasons, the District Court Judge has identified the plaintiff’s assertion immediately before the making of her findings without addressing the defendant’s detailed case, as developed through his affidavit, at any point in her reasons. The District Court Judge made no attempt to resolve the dispute between the parties as to the alleged motivations of the defendant and appears to have simply accepted the plaintiff’s assertions. In our view the District Court Judge did not adequately consider and weigh the evidence and in particular appeared to have little regard to the defendant’s evidence.
As earlier observed, the position has changed. We refer to the 12 months it has taken to prosecute the appeal, the imminent trial, and the undertaking of the defendant not to seek to move back into the Torrensville house in the event that he is successful on this appeal until a month after the conclusion of the taking of evidence in the District Court trial.
The undertaking proffered by the defendant will protect the plaintiff’s position throughout the course of the trial. The plaintiff will be able to pursue her cause of action whilst remaining at the Torrensville property to the exclusion of the defendant. In our view, the injunction granted by the District Court Judge should be set aside. The undertaking of the defendant should be accepted. A cross-undertaking by the plaintiff as to damages should be given. The undertaking of the defendant not to seek to move back into the Torrensville property continues until a month after the conclusion of the taking of evidence in the District Court trial. This will allow ample time for the plaintiff, if so advised, to renew her application for an injunction to the trial Judge. The trial Judge, at the conclusion of the evidence in the trial, will be in the best position to determine whether an interlocutory injunction should then be granted.
For these reasons we would allow the appeal. We would set aside the orders made by the District Court Judge. We would hear the parties as to the precise terms of the undertaking proffered by the defendant and the cross-undertaking as to damages to be proffered by the plaintiff. We would hear the parties as to costs.
KOURAKIS J: I have had the advantage of reading the reasons of Gray and Sulan JJ.
I too would hold that the District Court is empowered to enjoin conduct that is calculated to deter a party from pursuing an action within its jurisdiction. I am quite satisfied that superior courts have that power, even though the remarks of King CJ and Zelling J in Parry v Crooks[8] are obiter. It is unnecessary for the purpose of these proceedings to determine whether that power is conferred on the District Court, an inferior court, by s 30 of the District Court Act 1991 (the Act), the terms of which do not obviously extend to the circumstances of this case, or by necessary implication from the creation of the District Court as a court of record[9] and the grant of jurisdiction to it under the Act.[10] However it is necessary I think to state my view that the conferral on the District Court of the equitable jurisdiction of the Supreme Court by s 8 of the District Court Act 1991 is not a sufficient foundation for the order made in this case. The jurisdiction of the District Court to hear claims such as these is conferred by s 9 of the Domestic Partners Property Act 1996. We are here concerned with the availability of a power that can be exercised within jurisdiction,[11] which is not a matter addressed by s 8 of the District Court Act 1991.[12]
[8] (1981) 27 SASR 1 at 9 per King CJ and 19 per Zelling J. See also Silverstone v Silverstone [1953] P 174; Davis v Johnson [1979] AC 264 at 287; Broadmoor Special Hospital Authority v Robinson [1999] EWCA 3606.
[9] District Court Act 1991 s 5.
[10] District Court Act1991 s 8.
[11] See Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [10]-[11]; Page v Central Queensland University [2006] QCA 479 at [12]-13].
[12] Cf District Court Act 1991 ss30 and 31.
The appeal to this court is by way of rehearing. The District Court Judge erred by having regard to considerations, which may have been relevant to applications made pursuant to s 114 of the Family Law Act 1975 (Cth), but were extraneous to the discretion she was called on to exercise.[13] The Appeal Judge erred in failing to exercise the discretion afresh; it was not sufficient, given the error of the District Court Judge, to find that it was open to the District Court Judge to exercise the discretion in the way that she did.[14]
[13] [2007] SADC 98 [49]-[54].
[14] [2008] SASC 34 [30].
The hearing in the District Court proceeded on affidavit evidence, and for that reason this court is in as good a position as the trial court to assess the evidence. The material placed before the District Court Judge did not show that the respondent’s capacity to pursue her claim under the Domestic Partners Property Act 1996 was likely to be compromised by the appellant moving back into his home. Nor did the material justify the grant of an injunction on the basis that there was reason to apprehend that the appellant would assault or molest the respondent and thereby interfere with her occupation of the house.[15] The affidavit material, on its face, appears to address the issues in a way that is more adapted to an application pursuant to s 114 of the Family Law Act 1975 (Cth) than the applicable discretion of the District Court.
[15] Parry v Crooks (1981) 27 SASR 1at 19 per Zelling J.
I respectfully differ from the conclusion of Gray and Sulan JJ that the material placed before the District Court Judge was sufficient to show an arguable case that the respondent had been granted a licence to occupy the home until, either, the parties agreed on a division of property, or the respondent’s claim under the Domestic Partners Property Act 1996 was determined. It is plain that no such licence was granted expressly. I fail to see how such a licence, which so manifestly benefits one party to the detriment of the other, could be implied from the circumstances in which the appellant left the home. In my view, the only term as to duration that can possibly be implied is that the licence was terminable on reasonable notice. No evidence on that issue was placed before the District Court. The determination of that question would require further evidence to be adduced about the state of affairs of the parties.
It is unnecessary to consider whether the parties should be given leave to adduce further evidence, which addresses the relevant questions, or whether the matter should be remitted to the District Court, because the appellant has offered an undertaking not to return to the house until one month after the conclusion of the taking of evidence in the substantive District Court proceedings. In those circumstances, on the appellant formally giving the proffered undertaking to which I have referred, I would allow the appeal and set aside the orders made in the District Court. I would order, in lieu of the orders made by the District Court Judge, that the respondent’s application be dismissed. The respondent is of course free to make another application for an injunction at the conclusion of the evidence in the trial of her claim under the Domestic Partners Property Act 1996. I would hear the parties on the question of costs.
3
6
1