RR v MCB
[2022] WADC 79
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RR -v- MCB [2022] WADC 79
CORAM: VERNON DCJ
HEARD: 16 FEBRUARY & 5 AUGUST 2022
DELIVERED : 26 AUGUST 2022
FILE NO/S: APP 76 of 2021
BETWEEN: RR
Appellant
AND
MCB
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S MALLEY
File Number : ARM/GCLM/452/2021
Catchwords:
Debt recovery by appellant against former wife - Matrimonial causes - Magistrates Court - Jurisdiction
Legislation:
District Court Rules 2005 (WA), r 50(1)(d)
Family Court Act 1997 (WA), s 5, s 38, s 39
Family Law Act 1975 (Cth), s 4(1)(d), s 4(1)(eaa), s 4(2), s 8(1), s 39(6), s 39(7)
Jurisdiction of Courts of Summary Jurisdiction (Matrimonial Causes) Proclomation 2006 (Cth), s 5
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40
Planning and Development Act 2005 (WA), s 4, sch 3
Third Schedule Metropolitan Region Town Planning Scheme Act 1959 (WA) (repealed)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms M C Alido |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Maree Alido Barrister & Solicitor |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
VERNON DCJ:
This is an appeal from the decision of a magistrate on 13 October 2021 to dismiss the appellant's claim against the respondent for repayment of an amount the appellant claims he loaned to the respondent.
For the reasons set out below the appeal must be dismissed on the basis that the learned magistrate was correct in finding that he did not have jurisdiction to determine the appellant's claim against the respondent.
General principles
The appeal proceeds by way of a reconsideration of the evidence that was before the magistrate: s 40 Magistrates Court (Civil Proceedings) Act 2004 (WA) (Act), District Court Rules 2005 (WA) r 50(1)(d).
A court may only substitute its decision for that of the magistrate if the appellant demonstrates the orders the subject of the appeal are the result of a legal, factual or discretionary error by the magistrate, based on the material before the magistrate and any additional evidence the appellant has leave to adduce: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
Hearing of the appeal
The appeal was listed for a final hearing on 16 February 2022. The appellant represented himself at that hearing. After I had heard from the appellant and the respondent's counsel, the appellant said that he had not understood that the hearing would be a final hearing and sought an adjournment to obtain legal representation, indicating that he had approached a lawyer to represent him. I allowed the adjournment, and the appeal was listed for hearing on 5 April 2022. Prior to that hearing the appellant sought a further adjournment for medical reasons and the matter was re‑listed on 5 August 2022. On 2 August 2022 the appellant forwarded further written submissions to the court. He continued to represent himself at the hearing on 5 August 2022.
At that hearing the respondent relied on written submissions dated 23 March 2022, which the respondent's counsel had understood were filed at that date, but which were not received by the court until 5 August 2022. The appellant had received those submissions at least several days before the hearing.
The respondent's submissions attached several documents which amounted to additional evidence, without an affidavit supporting the late reliance on these. The appellant opposed the respondent being given leave to rely on these.
In my view, the documents either referred to matters that were not in issue in the appeal, or were not relevant to the issues before me, save for a copy of the agreement referred to in [11] below, tendered by consent at the hearing on 16 February 2022. Accordingly, I refused to allow the respondent leave to rely on these documents in the appeal, and do not rely on the respondent's written submissions to the extent that reference is made to documents that are not before me.
Factual background
There is no dispute about the facts set out in the paragraphs below.
The appellant and the respondent were married on 12 April 2007, and divorced on 21 July 2014, an order nisi having been made on 20 June 2014.
On 9 June 2014 the appellant and the respondent entered into a written agreement which documented that the appellant had loaned an amount of money to the respondent towards the purchase of a house and set out terms of repayment of the money by the respondent (the agreement).
In or about February 2015, the appellant commenced proceedings against the respondent in the Perth Magistrates Court to recover money said to be owed under the agreement.
In October 2015, the appellant discontinued the proceedings in the Magistrates Court after the respondent commenced proceedings on 30 July 2015 in the Family Court of Western Australia, numbered PTW 1329 of 2014, seeking property orders (the Family Court proceedings).
By letter dated 28 December 2017, the Principal Registrar of the Family Court of Western Australia wrote to the legal representatives of both the appellant and the respondent and said that if no response was received by the parties the matter would be referred to the presiding magistrate to consider making finalisation orders.
By a letter dated 4 January 2018, addressed to the Principal Registrar of the Family Court of Western Australia, the respondent's legal representative advised that the respondent did not object to finalisation orders being made.
By a letter dated 16 February 2018, the Acting Principal Registrar of the Family Court advised the parties, through their legal representatives, that the presiding magistrate was of the view that the Family Court proceedings should be finalised and had made the following direction:
In the event that either a Final Minute of Consent Orders signed by the parties or a written request to relist the remaining substantive proceedings is not received by either party by close of Registry on 30 April 2018, then the file be referred to the presiding Magistrate or a Magistrate in Chambers for final orders to be made without further notice to the parties as follows:
(a)The said proceedings be dismissed.
After 30 April 2018, orders were made dismissing the Family Court proceedings, the Family Court having not received any further correspondence from either the appellant or the respondent.
By a claim lodged on 11 June 2021 in the Magistrates Court in Armadale, the appellant claimed from the respondent the sum of $68,625.49, said to be owing pursuant to the agreement. The particulars of claim identify the dates that moneys are claimed to have been advanced to the respondent pursuant to the agreement as follows:
| Date of advance | Amount |
| 31.03.14 | $1,000 |
| 01.04.14 | $8,000 |
| 10.04.14 | $17,000 |
| 20.04.14 | $20,000 |
| 12.05.14 | $1,750.52 |
| 11.06.14 | $15,000 |
| 16.06.14 | $599 |
| 18.06.14 | $57 |
| 19.06.14 | $678 |
| 20.06.14 | $1,023 |
| 26.06.14 | $129 |
| 27.06.14 | $94 |
| 28.06.14 | $259.97 |
| 07.07.14 | $2,035 |
| 13.06.15 | $1,000 |
Of the amounts referred to in the table above, those dated 31 March 2014 to 11 June 2014 have descriptions indicating they related to the purchase of a property. Those dated 16 June to 28 June 2014 are described as 'furniture'. The item dated 7 July 2014 is described as 'maintenance work on the Property – plumbing'. These might arguably fall within the agreement. The item dated 13 June 2015 is described as 'cash advanced to defendant' which does not, on its face, fall within the agreement either as to time or subject. I also note that in written submissions filed in the Magistrates Court before the matter was dismissed, the appellant referred to 'loans' made during the period 31 March 2014 to 7 July 2014, which excludes that last item.
By a defence lodged on 24 June 2021, the respondent claimed that:
1.the money received from the appellant was a gift and not a loan, and was part of a property settlement arising from the breakdown of the marriage;
2.the matter was properly an issue for determination by the 'Family Court', and had already been subject to proceedings in that court; and
3.the respondent had executed the agreement under undue pressure.
On 1 September 2021 the matter came before the magistrate sitting in Armadale. The appellant represented himself. The respondent was represented by the counsel who had represented her in the Family Court proceedings.
At that hearing the magistrate expressed the preliminary view that, the agreement having been entered into before the parties were divorced, the matter was within the jurisdiction of the Family Court. The magistrate then adjourned the matter to 13 October 2021, and ordered the appellant to file written submissions as to why the Magistrates Court had jurisdiction.
Prior to the hearing on 13 October 2021, the appellant filed submissions dated 6 October 2021, in which the facts were set out, saying:
3It was an implied written term and an express verbal term between the parties that the loan repayments (and by definition the loan agreement) would commence when the [respondent] moved into the property and this date was always anticipated to occur after the divorce was finalised 21 July 2014.
…
10It was the specific intention of the parties and, in reality, the case that the commencement of the loan agreement was post finalisation of their divorce. Consequently the loaned monies do not form part of the marriage period and are a civil matter between the parties.
11The [appellant] had initially commenced a claim in the Perth Magistrates Court which was withdrawn because the [respondent] as he pursued her claim [sic] for property law orders in the FCWA. This was her right, however, once these proceedings were ultimately dismissed without objection by the [respondent] … the [appellant] is now within his rights to commence a civil law action and sue the [respondent] for breach of contract.
The respondent did not file written submissions on the point raised by the magistrate.
On 13 October 2021, the matter came on again before the magistrate. On this occasion the appellant was represented by counsel, who sought to make submissions. The following exchange occurred:
His Honour Yes, I've read the submissions. Unfortunately, the submissions, in my view - well, don't progress the matter because all you do - or whoever prepared them, confirms that the loan was made during the course of the marital relationship, when the parties were still married.
CounselThat's right.
His HonourWhatever the purpose of it all. And the parties went to the Family Court, and for better or for worse, they elected not to address it.
CounselYes, they dismissed it because of the fact that they were relying on this.
His HonourWell, not this was - they weren't relying on this, because this - that occurred back in 2015. These proceedings were commenced until May of '21. [sic]
CounselBut they had this agreement between them. They were relying on that.
His HonourNo, look, I've read the documents. As far as I'm concerned, the Family Court has exclusive jurisdiction. The claimant had the opportunity to address that in the Family Court but elected not to do so for whatever reasons. The claim will be dismissed. Thank you.
CounselThank you.
His HonourYes, the claim is dismissed ...
The appellant's submissions
The appellant submitted, in his written submissions filed on 9 February 2022, that the issue of whether the correct forum for the action was the Magistrates Court or the Family Court was a question of fact. As the respondent chose not to file submissions, the appellant submits that the respondent can be said to have, in effect, accepted the appellant's version of the facts, and that version of events is the only version upon which the magistrate could base his decision. The appellant submits that, on those facts, the only logical conclusion is that the Magistrates Court had jurisdiction.
The appellant raised a further basis for appealing the magistrate's decision in his written submissions and at the hearing on 16 February 2022, to the effect that he was not given a fair hearing because his solicitor was not given the opportunity to present his case orally. On 16 February 2022, I gave the appellant leave to appeal on that basis.
By the submissions filed on 2 August 2022, the appellant submitted that the learned magistrate was mistaken in dismissing the case because the agreement was made outside the course of the matrimonial relationship, and that it was always intended and agreed between the appellant and the respondent that the agreement would commence once the divorce was finalised saying 'it could not have been any other way'.
Determination of appeal
The learned magistrate did not articulate the basis for his Honour's decision that the Family Court had exclusive jurisdiction over the matter. However, in my view, the decision that the magistrate did not have jurisdiction to determine the matter was correct for the following reasons.
Proceedings by way of a 'matrimonial cause' are governed by the Family Law Act 1975 (Cth) (the FLA): s 8(1) FLA.
The term 'matrimonial cause' includes proceedings between the parties to a marriage with respect to the property of the marriage or either of them, being proceedings arising out of the marital relationship, or in relation to concurrent, pending or completed divorce proceedings between those parties, including proceedings with respect to a financial agreement between the parties: s 4(1)(d) and s 4(1)(eaa) FLA.
In its ordinary meaning money loaned by one party to a marriage to the other party to that marriage is 'property of the marriage or either of them'.
The reference to 'a party to a marriage' includes a person who has been a party to a marriage that has been terminated by divorce: s 4(2) FLA. Accordingly, the fact that the marriage was terminated by divorce, or (as the appellant alleges) the parties intended the agreement to operate after the divorce was finalised, is not relevant to the determination of jurisdiction. The agreement is still one concerning the property of a party to the marriage, between the parties to that marriage, and any proceedings concerning that agreement and the moneys loaned under it are a matrimonial cause, as these terms are defined. In any event, however, the appellant's claim, as articulated to the magistrate, was based on loans claimed to have been made before the divorce was finalised on 21 July 2014.
The Family Court Act 1997 (WA) (FCA) provides that a court of summary jurisdiction in Western Australia constituted by a magistrate or a family law magistrate has the federal jurisdiction with which it is invested under the FLA: s 38 FCA.
A 'family law magistrate' is a person appointed both as a magistrate under the Magistrates Court Act 2004 (WA) and as either principal registrar or a registrar of the Family Court of Western Australia: s 5 FCA.
Federal jurisdiction to determine certain matrimonial causes, including proceedings between the parties to a marriage with respect to the property of the marriage or either of them is conferred on each court of summary jurisdiction in each state: s 39(6) FLA. However, by the Jurisdiction of Courts of Summary Jurisdiction (Matrimonial Causes) Proclamation 2006 (Cth) (the Proclamation) made under s 39(7) FLA, the jurisdiction conferred by s 39(6) FLA is limited within the Perth metropolitan region to the Magistrates Court of Western Australia constituted by a family law magistrate of Western Australia: s 5 of the Proclamation.
This reflects s 39 of the FCA, which limits the non‑federal jurisdiction conferred under the FCA to magistrates sitting outside the metropolitan region and to family law magistrates sitting anywhere in Western Australia.
The term 'Perth metropolitan region' in s 4 of the Proclamation and the 'metropolitan region' in s 39 of the FLA refer to the same area of land, which includes Armadale: see s 4 and sch 3 Planning and Development Act 2005 (WA) and Third Schedule Metropolitan Region Town Planning Scheme Act 1959 (WA) (repealed).
Accordingly, in my view, the learned magistrate was correct in deciding that he did not have jurisdiction to determine the appellant's claim against the respondent.
Whilst the appellant argued that the proceedings in the Family Court were the respondent's proceedings, and the respondent determined not to pursue them, it was open to the appellant to pursue his claim for recovery of moneys alleged to be loaned under the agreement in those proceedings. He chose not to do so at a time when he apparently had legal representation.
The question of whether or not any proceedings in the Family Court would be liable to be struck out, given the dismissal of the earlier proceedings, is not relevant to my determination of whether the magistrate had jurisdiction to determine the claim. As I have found, the magistrate did not have that jurisdiction.
With respect to the additional ground of appeal, that there was a denial of natural justice in failing to allow the appellant's counsel a hearing on 13 October 2021, the magistrate gave the appellant's legal representative an opportunity to speak at the hearing on 13 October 2021, albeit limited. However, that was in the context of the magistrate having adjourned the hearing for six weeks from 1 September 2021, so that the parties could address that issue in written submissions, which the magistrate had clearly read before the latter hearing. However, even were the appellant successful on this ground, it could not assist him in the appeal, as there is no utility in returning the matter to the Magistrates Court, given my view that the magistrate was correct in determining the jurisdictional question. Accordingly, it is not necessary for me to determine that ground.
Conclusion
The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LP
Associate to Her Honour Judge Vernon
26 AUGUST 2022
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