Queen and Queen and Ors

[2009] FamCA 637

FAMILY COURT OF AUSTRALIA

QUEEN & QUEEN AND ORS [2009] FamCA 637

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

Family Law Act 1975 (Cth)

APPLICANT: Ms Queen

RESPONDENT: Mr H Queen

2^nd and 3^rd RESPONDENTS Mr J Queen and
Queen Nominees Pty Ltd

FILE NUMBER: MLC 4749 of 2009

DATE DELIVERED: 10 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Leeton

SOLICITOR FOR THE APPLICANT: Stephen Farmer & Associates

COUNSEL FOR THE 2^ND AND 3^RD RESPONDENTS Mr Nicholson

SOLICITOR FOR THE 2^ND AND 3^RD RESPONDENTS Kennedy Wisewoulds

Orders

1. That the matter be listed for determination of the jurisdictional issue on … July 2009 at … before me.

2. That in the event that the Court determines that it does have jurisdiction to hear the wife’s application, then the Court proceed to determine all interim applications at the conclusion of the jurisdictional argument, subject to any determination to the contrary.

3. That the wife file any further documents upon which she wishes to rely by 4.00pm on … July 2009.

4. That the second and third respondents file any further documents upon which they intend to rely by 4.00pm on … July 2009.

5. That all parties file submissions on the law in respect of the jurisdiction issue by 4.00pm on … July 2009 by email to my Associate.

6. That the costs of the parties be reserved.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That my reasons for judgment this day be transcribed.

IT IS NOTED that publication of this judgment under the pseudonym Queen & Queen and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4749 of 2009

MS QUEEN

Applicant

And

MR H QUEEN

Respondent

MR J QUEEN and QUEEN NOMINEES PTY LTD

2^nd and 3^rd Respondents

REASONS FOR JUDGMENT

1. I have before me an application filed by the wife on 1 June 2009, returnable in the judicial duty list today, supported by an affidavit sworn on 29 May 2009.  The application sets out a number of orders that the wife seeks, of a final nature, but also interim orders.  The background facts of this case are not necessarily disputed.  The difficulty for me at the moment is that the litigants, for whom Mr Nicholson of counsel appears, are the son of the husband and a company entity.  Mr Nicholson, on behalf of his clients, raises the question of the jurisdiction of the court to make the orders.  As is well known, in any case a court can only deal with the matters within its jurisdiction and, if jurisdiction is challenged, that is the first matter that must be determined.

2. In this case, it seems common ground that the parties will have that issue argued.  The issue is whether or not, pending the ultimate determination of the jurisdictional issue, there is power for the court to make orders of an injunctive nature against the son and the corporate entity, to whom I shall refer as the third parties.  This is not a novel issue;  it has been around for a long time.  The two authorities to which I have been referred by both sides indicate that, pending the ultimate determination of jurisdiction, there is a power to make injunctive orders on an interim basis; however, the power to do so is very much restricted. 

3. The first authority, and which the second authority follows, is Re Ross-Jones;  Ex parte Green (1984) FLC 91–555, which is a decision of the Full Court of the High Court of Australia in 1984. It is a case in which there were certain similarities to this. The principle to which I have already referred, about the capacity of a court to deal with and make orders in relation to interim matters pending the determination of jurisdiction, was comprehensively covered by a number of the judges of the High Court. Gibbs CJ said at page 79,488 of the report said:

   …while the Family Court is exercising its power to determine whether or not it has jurisdiction in a particular case, it may be right to keep matters in statu quo by the grant of an interlocutory injunction. That would be so only while the question whether it had jurisdiction remained in doubt and was being determined, and it goes without saying that if an interlocutory injunction were granted in those circumstances the questions of fact and law on which jurisdiction depended would have to be determined as a matter of the utmost urgency - not after a lapse of two or three months as was proposed in the present case - and that once it appeared that jurisdiction was lacking, the injunction would have to be dissolved, however inconvenient that course might appear.

4. In the same case, but in similar words, the other judges indicated that the power to make such an injunction was extremely limited.  That was followed in Yunghanns (1999) FLC 92-836. The Full Court in Yunghanns had a similar issue about the way in which Dessau J determined the matter.  In Yunghanns, the Full Court helpfully set out the essential principles that arose from R v Ross-Jones;  Ex parte Green.  The eighth point to which the Full Court referred was as follows:

   The only circumstance in which the Court may proceed to make orders, despite a challenge to its jurisdiction so to do, and before it has found the existence of the jurisdictional facts, is that referred to by Gibbs CJ in R v Ross-Jones; Ex parte Green (supra) at FLC 79,488; CLR 202, namely when it is considered necessary to make holding orders to maintain the status quo pending its determination (with ''the utmost urgency'') of whether it does have jurisdiction. 

5. The words “the utmost urgency” are in parenthesis.  The Full Court in Yunghanns followed what the High Court said was the important path.  The question, therefore, in this case is whether there is evidence before me which would indicate that, pending the determination of the jurisdictional basis for the orders, there is something of the utmost urgency.  I have had my attention drawn to a number of paragraphs of the wife’s affidavit.  Initially, Mr Nicholson asked me to only look at one particular paragraph, but I have read the others.  There are really only three paragraphs that are of any great assistance.  One refers to an incident in 2006.  The second is paragraph 27, in which the wife deposes to the fact that:

   At some time shortly after the meeting of the 3 of us with Dr [L] it was arranged for my husband and [J Queen], without my knowledge and behind my back, to execute documents (dated 19 September 2005)... 

6. She then goes on to set out what those documents were.  The importance of that paragraph, in my determination, is obviously the date.  That all occurred back in 2005.  Paragraph 25 refers to something that occurred in 2006.  The other paragraph to which my attention was drawn was paragraph 43.  That is preceded by a heading which reads, “Manipulation of finances and depletion of asset pool”.  Paragraph 43 reads:

   That in accordance with Orders made by VCAT [J Queen] has provided me with copies of the Financial Statements for the [N] Unit Trust and the [H Queen] Family Trust for the year ended 30 June 2008.  Copies of those Financial Statements are annexed hereto and marked “DQ6” and “DQ7” respectively.  The notes to those Financial Statements show that the credit loan account in [J’s] name had been reduced to $1,335,595 as at 30 June 2008.  At 30 June 2007 [J’s] Credit Loan Account balance was $1,775,962.  It follows that in the year ended 30 June 2008 he withdrew $440,367 from the credit loan account that had previously belonged to my husband.  The notes to the Financial Statements of the [H Queen] Family Trust show that as at 30 June 2008 [J] now has a credit loan account of $203,248 (in lieu of the loan account of $234,649 transferred to him by my husband on 19 September 2005). 

7. A number of matters arise out of that particular paragraph.  The amount of money in the loan account has been reduced at a fairly significant rate.  The affidavit does not, however, set out the urgency.  It does not set out when this all came to the wife’s attention, nor what steps have been taken specifically to indicate that the problem is of a very serious nature. 

8. In the circumstances, I could not find that this is a case in which, pending the determination of the jurisdictional issue, I could say that there is the need to make an injunction of the utmost serious nature.  In those circumstances, I decline to exercise the jurisdiction to make that order. 

9. That leads me, then, to the question of what is to happen in the meantime.  Mr Nicholson has tendered to me a proposed minute.  It sets out a series of orders about how the jurisdictional question is to be determined.  It is common ground that the parties all want this matter sorted out as quickly as possible.  What I’m proposing to do is to order that the issue of the jurisdictional question be determined by me, or by some other judge, but most likely by me, on …July at 10 am.

I certify that the preceding Nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  20 July 2009