PRICE v SCHULTZ - [2008] SASC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Miscellaneous Appeal)
PRICE v SCHULTZ
[2008] SASC 34
Judgment of The Honourable Justice Duggan
19 February 2008
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - JURISDICTION AND GENERALLY
Appeal against granting of interlocutory injunction restraining appellant from entering upon or residing at premises owned by him pending litigation pursuant to Domestic Partners Property Act 1996 (SA) – the appellant's former partner (the respondent) residing at premises - whether permissible to restrain harassment or intimidation designed to deter a party from pursuing a legal remedy - whether sufficient evidence to justify order - discussion as to balance of convenience.
Held: It was open to the judge to make an interlocutory order to prevent the occurrence of circumstances in which harrassment or intimidation of the respondent would deter her from pursuing remedies provided by the Domestic Partners Property Act 1996 (SA). Appeal dismissed.
Domestic Partners Property Act 1996 (SA) s 10; District Court Act 1991 (SA) s 30(1), s 30(2), s 30(4); Supreme Court Act 1935 (SA) s 29(1); Supreme Court of Judicature (Consolidation) Act 1925 UK, referred to.
Silverstone v Silverstone [1953] 1 WLR 513; Parry v Crooks (1980) 27 SASR 1, discussed.

PRICE v SCHULTZ
[2008] SASC 34
Appeal from interlocutory order made in the District Court

DUGGAN J. The appellant and the respondent lived together in a domestic relationship for a period of about 12 years. Throughout that time they resided in a house at 64 Clifford Street, Torrensville (“the Torrensville property”). The Torrensville property is owned by the appellant. The respondent is 64 years of age and the appellant is 61. There is no domestic partnership agreement between the parties.
The parties ceased living together on about 23 July 2006 when the appellant left the Torrensville property and went to live with his son at his son’s house. The respondent continues to reside at the Torrensville property.
On 19 July 2007 the respondent commenced proceedings against the appellant in the District Court seeking various orders pursuant to s 10 of the Domestic Partners Property Act 1996. Section 10 empowers the court to make orders after the end of a domestic partnership so as to divide the property of either or both partners between them in a way that is just and equitable. One of the orders sought by the respondent is the transfer to her of an unencumbered freehold interest in the Torrensville property.
The appellant filed a defence. Affidavits from both parties have been filed in the District Court.
Four days after the respondent issued these proceedings, the appellant instructed his solicitors to give the respondent seven days notice of his intention to move back into the Torrensville property.
On 24 July 2007 the respondent emailed the appellant to enquire whether he would collect his possessions from the Torrensville property. The respondent 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.
On 24 September 2007 the following interlocutory orders were made by a judge of the District Court:
1That the defendant [the appellant] whether by himself or by his agents be restrained and an injunction be granted restraining the defendant or his agents from selling, disposing of, mortgaging, encumbering or otherwise dealing with the property at 64 Clifford Street, Torrensville in the State of SA being the whole of the land comprised and described in Certificate of Title Register Book Volume 5836 Folio 152.
2That the defendant [the appellant] whether by himself or by his agents be further restrained and an injunction be granted restraining the defendant or his agents from entering upon or residing at the premises known as 64 Clifford Street, Torrensville being the whole of the land comprised in Certificate of Title Register Book Volume 5836 Folio 152 without the written consent of the plaintiff.
3That the defendant continue to pay all rates and charges attached to the property by virtue of the fact that he remains the registered proprietor.
4That the defendant pay the plaintiff’s costs to be agreed or taxed.
5The parties may apply for further Orders and Directions.
The matter was adjourned to a settlement conference to be held on 27 February 2008.
The appeal to this court is against the order restraining the appellant from residing at the Torrensville property.
The appellant contends that there is no basis upon which the injunction restraining him from entering or residing at the Torrensville property could be made and that, even if the court had power to make such an order, the balance of convenience lies in his favour.
The learned judge acknowledged that there was no statutory provision in South Australia specifically authorising an injunction of this nature. However, her Honour relied upon the general power in s 30 of the District Court Act 1991 which 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.
After referring in her reasons to cases in which injunctions had been granted to restrain harassment or intimidation designed to deter a party from pursuing a legal remedy, her Honour continued:
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[1], Nguyen v Scheiff [2] and Parry v Crooks[3].
[1] [1953] 1 WLR 513.
[2] [2002] NSWSC 151.
[3] (1980) 27 SASR 1.
Although Silverstone v Silverstone was in the matrimonial jurisdiction, at the time the case was decided the only relevant power to grant injunctive relief in such circumstances in the United Kingdom was that contained in s 45(1) of the Supreme Court of Judicature (Consolidation) Act 1925 which provided that:
The High Court may grant … an injunction … in all cases in which it appears to the court to be just and convenient so to do.
This section is almost identical to s 29(1) of the Supreme Court Act 1935 and is similar to s 30 of the District Court Act 1991.
Despite the wide language of these sections they have been interpreted as confining the jurisdiction to grant injunctions to the protection of legal or equitable rights.[4]
[4] North London Railway Co. v Great Northern Railway Co. (1883) 11 QBD 30 at 40; Richards v Richards [1984] 1 AC 174 at 218; Parry v Crooks (1981) 27 SASR 1 at 9.
In some jurisdictions there is a specific statutory power to make orders with respect to the occupancy of premises in which the parties to a marriage or relationship reside.[5] However, there is no such provision in South Australian legislation.
[5] See Family Law Act 1975 (Cth) s 114(1); The Property (Relationships) Act 1984 (NSW) s 53 and the discussion in Nguyen v Scheiff [2002] NSWSC 151.
The learned judge placed reliance on the decision of this court in Parry v Crooks and the decision of Pearce J in Silverstone v Silverstone in reaching the conclusion that she had the necessary jurisdiction to make the interlocutory order preventing the appellant from entering upon or residing at the Torrensville property.
In Parry v Crooks the appellant was divorced with three children. After her divorce she cohabited with the respondent. She rented a housing trust property and lived in it with her children and the respondent. There was a history of violent and abusive conduct by the respondent against the appellant. Eventually, the appellant left the house as a result of the respondent’s violence. She issued a writ and statement of claim which asserted that she was the lawful lessee of the premises and that the respondent had no right to entry or occupation. She sought a permanent injunction restraining the respondent from trespassing and from “assaulting, molesting, abusing, intimidating or harassing” her and an interlocutory injunction in the same terms as the permanent injunction.
A single judge refused the interlocutory relief sought in the summons and the appellant appealed against the refusal to the Full Court. The appeal was dismissed on the ground that there was no sound basis for the grant of the injunction.
After expressing the view that the remedy for preventing threatened violence was to be found in the summary procedure of the Magistrates Court and not, as a general rule, in the Supreme Court, King CJ referred to the situation in which a particular form of harassment could lead to the granting of injunctive relief. He said:[6]
The jurisdiction of the Courts to grant injunctions is not unlimited despite the apparent width of the language of s 29 of the Supreme Court Act: North London Railway Company v Great Northern Railway Company[7], per Cotton LJ at p 39; The Siskina[8], per Lord Diplock at p 256. It seems to me that an injunction can only be granted in terms which would extend to conduct which does not infringe a legal right if some specific statutory power can be invoked or some accepted basis of legal principle can be found to justify it. No assistance can be gained from the cases concerning the power of courts exercising matrimonial jurisdiction to grant injunctions against molestation under the provisions of statutes relating to matrimonial causes, eg Family Law Act, s 114(1). Such provisions do not extend to persons who have never been married to one another. I think that 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, and I see no reason why the principle upon which Pearce J acted in Silverstone v Silverstone should be confined to matrimonial causes. In this case, however, there is no question of the appellant being bullied into not pursuing a legal remedy. (emphasis added)
[6] Ibid at 9.
[7] (1883) 11 QBD 30.
[8] [1979] AC 210.
In the same case Zelling J provided the following example of a case in which injunctive relief was available:
The next case is where the conduct sought to be enjoined amounts to pressure on an injured spouse to forego the exercise of her legal rights or to hinder or hamper her in the exercise of those rights. The courts have always interfered to prevent people being prevented or harassed in the exercise of their legal rights. The cases are summed up in the judgment of Baker P in Davis v Johnson[9]. I agree with respect with what is there said by the learned President.
[9] [1979] AC 264 at p 287.
Silverstone v Silverstone involved matrimonial proceedings in which the wife filed a petition for judicial separation. The matrimonial home belonged to the husband. The wife applied for an injunction preventing the husband from residing in the matrimonial home pending the trial of the petition. Pearce J held that the wife had a right to remain in the matrimonial home pending the resolution of the petition and that the court had the power to protect that right in order to ensure that pressure was not put upon her to abandon her petition.
The appellant’s argument before both this court and the learned judge proceeded on the basis that the respondent has no legal or equitable right which might be protected by an injunction. The argument is correct in so far as it refers to an existing and vested right in the property. On the other hand, the cases of Parry v Crooks and Silverstone v Silverstone recognise the jurisdiction under a general provision such as s 30 of the District Court Act to grant an interlocutory injunction to restrain harassment designed to deter a party from pursuing a legal remedy. The remedy in the present case is the right to apply for an order for the division of property under s 10 of the Domestic Partners Property Act 1996. As is apparent from her Honour’s remarks quoted above, this was the legal basis for her deciding to grant the injunction. In my view her Honour was correct in taking this approach on the jurisdictional issue.
The next question which arises is whether there was sufficient material before the judge to justify the making of the order.
The appellant stated in his affidavit dated 10 August 2007 that he left the Torrensville property in July 2006 and has since resided with his son. He said he did so because he and the respondent agreed that it would be difficult to negotiate a settlement while they were both residing in the same premises. He stated in his affidavit that his present living arrangements are unsatisfactory in that he feels he can no longer impose on his son.
There is little doubt that the return of the appellant to the Torrensville premises at this stage in the proceedings would give rise to awkwardness and unpleasantness. The sequence of events also suggests that the appellant was motivated by the commencement of these proceedings to exercise his rights over his property, whereas he had previously decided to allow the respondent to reside there alone until some resolution of the situation could be reached.
However, the limited scope of the jurisdiction to grant an injunction in such circumstances must be acknowledged. The respondent does not have a proprietary right in the property. The issue is whether it is appropriate to grant an injunction to prevent conduct which could have the effect of deterring her from pursuing a legal remedy.
The respondent’s affidavits refer to her significant health problems, the layout of the Torrensville property and the ill-feeling between her and the appellant. The respondent stated in her affidavit of 26 July 2007 that the appellant had repeatedly threatened that he could drag the matter on for four years or more. The respondent has limited assets and is in receipt of a disability pension. She has deposed to the fact that she could not live elsewhere.
The correspondence between the parties and the chronology of events make it clear that the appellant decided to return to the home because of these proceedings.
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 Act1996.
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.
In my view there was jurisdiction to grant the injunction and the District Court judge did not err in deciding that the circumstances justified the making of the interlocutory injunction.
The appeal will be dismissed.