Sahni and Kamdar
[2018] FCCA 937
•20 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAHNI & KAMDAR | [2018] FCCA 937 |
| Catchwords: FAMILY LAW – Anti-suit injunction – parties of Indian ethnicity – arranged marriage – parties have permanent residence in Australia – respondent wife resides in Australia from 2007 to 2017 – respondent transferred substantial funds from Australia to India – property proceedings instituted in Federal Circuit Court of Australia – respondent actively participated in proceedings – respondent travelled to India mid-2017 – respondent issued multiple proceedings in India – respondent seeks substantially the same relief as sought in Australia – both parties legally represented in Australia and India – applicant seeks relief in the form of an anti-suit injunction – Indian Court concerned to know outcome of Australian proceeding before making final orders – Australian Court not a clearly inappropriate forum – respondent’s conduct in commencing foreign proceedings in unconscientious disregard of the applicant’s legal rights – jurisdiction of the Federal Circuit Court – power to protect the integrity of the Court’s processes once set in motion – discretionary factors favour grant of relief – caution required – anti-suit injunction granted. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 34, 39, 42, 72, 79, 114 Federal Circuit Court of Australia Act 1999 (Cth), ss.8, 10, 15 |
| Cases cited: Ashforth & Ashforth [2010] FamCA 37 Texts cited: |
| Applicant: | MR SAHNI |
| Respondent: | MS KAMDAR |
| File Number: | MLC 3479 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing dates: | 9-10 April 2018 |
| Date of Last Submission: | 10 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Renwick |
| Solicitors for the Applicant: | Armstrong Legal |
| Counsel for the Respondent: | Ms O’Connell |
| Solicitors for the Respondent: | RRR Lawyers |
UPON THE APPLICANT BY HIS COUNSEL UNDERTAKING TO THE COURT THAT he will not transfer or otherwise dispose of his interest in the property situate at Village (omitted), District (omitted), India (as more particularly described in the respondent’s Plaint in Civil Suit No (omitted) issued out of the Court of (omitted) India, (omitted)) pending further order in this proceeding.
THE COURT ORDERS THAT:
Until further order, the respondent be and is hereby restrained whether by herself, her servants or agents or howsoever otherwise from continuing to prosecute her proceedings in India:
(a)in a suit for the recovery of maintenance as instituted in the Court of Civil Judge, Senior Division, (omitted) India;
(b)in a suit for the recovery of arrears of maintenance as instituted in the Court of Civil Judge, Senior Division, (omitted) India;
(c)in a suit for relief including the payment of maintenance as instituted in the Court of Chief Judicial Magistrate, (omitted) India;
(d)for an injunction, charge or other relief in aid of the aforesaid claims for the payment or recovery of maintenance; and
(e)for relief in respect of any property of the parties to this proceeding.
Until further order, the respondent be and is hereby restrained whether by herself, her servants or agents or howsoever otherwise from commencing any proceeding in India by way of suit or other claim of relief for:
(a)the payment or recovery of maintenance;
(b)an injunction, charge or other relief in aid of any such suit for the payment or recovery of maintenance; or
(c)relief in respect of any property of the parties to this proceeding.
Paragraphs 1 – 2 of this Order shall not operate so as to prevent the respondent from:
(a)prosecuting the criminal proceeding instituted in (omitted), India, by the respondent together with her parents against the applicant and his parents respectively seeking relief in relation to an alleged dowry; or
(b)prosecuting any proceeding in India seeking the recognition or enforcement of any order that is made in this proceeding.
Direct that the respondent forthwith do all acts and things and sign all documents necessary so as to apply for:
(a)a stay of each of the proceedings in India for the recovery of maintenance as referred to in paragraph 1 of this Order; and
(b)the discharge of the injunction granted on 28 March 2018 in Civil Suit No (omitted) issued out of the Court of (omitted) India.
Further direct that the respondent file a copy of this Order in each of her suits for relief:
(a)before the Civil Judge, Senior Division, (omitted) India; and
(b)before the Chief Judicial Magistrate, (omitted) India.
Until further order, the respondent be and is hereby restrained from leaving the Commonwealth of Australia.
For the purposes of paragraph 6 of this Order, the applicant forthwith provide a copy of this Order to the Australian Federal Police requesting that the respondent, MS KAMDAR born (omitted) 1984, be placed on the Airport Watch List at all points of international departure from Australia for the purpose of preventing her from leaving Australia in breach of this Order.
Upon compliance with paragraphs 4 – 5 of this Order, the applicant and respondent forthwith do all acts and things and sign all documents as may be necessary to remove the respondent’s name from the Airport Watch List.
The proceeding is listed for mention at 10.00am on 4 May 2018 to consider whether an order be made vacating paragraph 6 of this Order.
The proceeding is set down for final hearing on 3 September 2018.
At the final hearing, each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).
Other than as provided in these orders, no party may file or rely upon any further evidence without leave of the court.
The evidence of each party and any witness be by way of affidavit as provided by paragraph 11 of this Order, and:
(a)the applicant electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing;
(b)the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 14 days prior to the hearing.
By 4.00pm on 3 August 2018, the parties file and serve an outline of case not more than 12 pages in length (12 point font and 1.5 spacing) to address the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(d)main contentions on disputes as to:
i.inclusion of items in the pool; and
ii.the value of items where the value is in dispute;
(e)list of contributions claimed or contended for and the percentage assessment on contributions contended for;
(f)list of other factors relied upon (s 75(2) factors) and percentage adjustment contended for;
(g)other contentions relevant to determining a ‘just and equitable’ division of property; and
(h)the precise orders sought.
The costs of this application are reserved.
AND THE COURT NOTES THAT:
A.The parties are in contest whether the applicant has already disposed of his beneficial interest in the (Indian property) property.
IT IS NOTED that publication of this judgment under the pseudonym Sahni & Kamdar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3479 of 2017
| MR SAHNI |
Applicant
And
| MS KAMDAR |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain why orders were made restraining the respondent from continuing certain claims and proceedings which have been instituted in India respecting the payment of maintenance, for ancillary relief by way of injunction and for the imposition of a charge over certain property situate in India to secure such claims.
The application was made in the urgent circumstances detailed below. It was made at the commencement of what was to have been a final two-day hearing of the parties’ application for an adjustment of their property interests. The final hearing was aborted and an interlocutory hearing was conducted in relation to the matters described above.
In the circumstances of this case, once the applicant commenced the proceeding, the Court’s power to protect the integrity of its processes was engaged. The respondent had and continues to participate actively in the proceeding in this Court yet has now brought no less than four proceedings in Indian Courts for much of the same relief as is sought by her in the Australian proceedings. To do so was to act with an unconscientious disregard of the applicant’s legal rights.
Background
The matters addressed below are drawn from the parties’ affidavits and submissions and do not reflect findings of fact made following a trial.
The parties are of Indian ethnicity. Each holds tertiary qualifications. They seek a determination of their competing claims for adjustment of property interests under the Family Law Act1975 (Cth). By her amended response, the respondent also seeks spousal maintenance.
The applicant, who was born in India, is presently aged 36 years and immigrated to Australia in 2006. He has resided here since that date. Although the applicant is a qualified (occupation omitted), he presently has casual work as a (occupation omitted) earning approximately $26,000 per annum. The respondent contends that in addition to his employ as a (occupation omitted), the applicant also works as a (occupation omitted) and (employment omitted) and that he conducts a (omitted) business in partnership.
The respondent, who was also born in India, is aged 34 years and arrived in Australia in 2007 to study a (qualifications omitted). She is now a qualified (occupation omitted). Until (omitted) 2017, she had worked in that occupation, being employed by (employer omitted) and earning approximately $90,000 per annum. The respondent gave evidence that she has obtained permanent residence in Australia.
The parties first met in Melbourne in (omitted) 2012 as a consequence of the respondent’s parents having placed what was described as a ‘matrimonial advertisement’. The parties commenced cohabitation in (omitted) 2012 in Melbourne and travelled to (country omitted), then India.
On (omitted) 2012, the parties married pursuant to an arranged marriage. The marriage took place in (omitted), India. The parties separated on a final basis on 4 November 2016 and are now divorced. There are no children of their marriage or of any other relationship.
The applicant has had the care of his parents since before the parties’ marriage. They have apparently resided with him for some part of each year but return to India to visit friends and relatives annually. The applicant claims that his parents are dependent upon him.
In (omitted) 2005, the applicant and his brother, Mr G, received an inheritance from their grandfather. The inheritance was of certain land situated in (omitted), India and was said to comprise some (omitted) acres in area with a value of $100,000. The respondent contests the applicant’s position as concerns the (omitted) land and contends that the area of the land he owns is not (omitted), but some (omitted) acres. The respondent also contends that in addition to its value, the applicant and his brother derive an income from the agricultural use of the land.
The applicant deposed that the (Indian property) land had been inherited by both the applicant and his brother, Mr G. He deposed that when he immigrated to Australia in 2006 his brother Mr G had paid for the applicant’s immigration expenses together with the costs associated with the applicant obtaining permanent residency and that he had lived with Mr G and his family for some three years. He deposed that:
Instead of repaying Mr G for living costs and Permanent Residency, we agreed in 2012 that I would transfer the land I inherited in India to Mr G. We have documented the exchange; however, we have not lodged the necessary paperwork to transfer the title of the land and we are unable to do so for reasons I depose to in further detail below. Although the land is registered in both names, Mr G is the beneficial owner of the land. I have since moved back in with Mr G and his family and owe him further funds for legal expenses and board.
On that evidence, an agreement made in 2012 has not been completed. I do not know whether that agreement was made in India or Australia.
It appears that the applicant and Mr G currently remain registered as proprietors of this land. However, the applicant claims that Mr G now beneficially owns the whole of the land and that a document has been executed which provides for the applicant’s interests in the (Indian property) property to be transferred to Mr G. Contextually, the applicant relies upon an agreement made in 2012 that Mr G would own the entire beneficial interest in the land and a transfer of some kind which, although executed by the parties, has not yet been registered.
The applicant is also registered as proprietor of a property situated in Property A. The applicant’s interest in that property is subject to a registered mortgage in favour of (omitted) Bank. The applicant purchased this property in (omitted) 2010 as a vacant block of land and proceeded to construct a house on it. Construction of the house was complete before the parties’ marriage. The applicant claims that he furnished the Property A property and that in (omitted) 2012 he moved into the property with his parents.
The indicative value of the property is $650,000 and the amount secured by the mortgage is $430,000. The present equity in the property may therefore be in the order of ~$220,000.
Following their marriage, the parties moved into the Property A property, again with the applicant’s parents. In addition, it appears that the parties also had another couple as lodgers who paid for their accommodation and also contributed to certain living costs.
It appears that the parties’ employment was affected by retrenchments, terminations and/or the failure of their employers’ businesses.
The parties are in dispute as to their respective financial and other contributions whether before, during or after their relationship.
The parties did not operate joint bank accounts and paid their own expenses. The applicant claimed that he serviced the mortgage and paid all outgoings while the respondent spent her income on herself or saved it. This is disputed by the respondent.
The applicant deposed that he was unaware of the amount of savings which the respondent had accumulated during their marriage.
However, the applicant accepted that the respondent had made various loans to him over the period of the marriage which loans were made for the purposes of enabling him to acquire an interest in certain business ventures. He deposed that the respondent made demand for the repayment of those loans and says that they have been repaid.
Among the issues in dispute is whether the respondent’s parents provided the applicant’s parents with a dowry. The applicant accepts that the respondent was given jewellery by her parents at the time of the marriage (but disputed the value of that gift). He deposes that:
Before our marriage, our families decided that no dowry will be exchanged apart from the customary nominal gifts and jewellery. Ms Kamdar’s father gave me Rs10,000 (equivalent to approximately $200) and my parents gave Ms Kamdar some jewellery and clothes.
The respondent counters that the dowry has been held by the applicant’s parents and that they have refused to return it. She also contends that the applicant’s parents had deposited certain property comprised in the dowry in a bank deposit and will not release it.
Another issue in dispute concerns the applicant’s involvement in a business venture in an (omitted) franchise conducted in Tasmania and the contributions that were made to that business by the respondent. During at least part of the period of the applicant’s involvement in this franchise, he lived in Tasmania while the respondent continued to live in the Property A property.
A further issue concerns certain loans which the respondent alleges were made to her by her parents in relation to her tertiary education.
While it appears that the parties have not yet made full financial disclosure, nonetheless, the asset pool appears to be relatively modest.
Following their marriage, the parties lived in the Property A property for the majority of the period until their separation.
The applicant contends that the parties’ relationship was beset by difficulty from at least March 2015. In July 2016, the respondent refused to pay any outgoings for the property. In August 2016, the applicant moved to another bedroom and moved his personal belongings to that room. In November 2016, the applicant asked the respondent to move out of the Property A property. This request was declined. On 4 November 2016, when the applicant’s parents returned to India, the applicant moved into accommodation with his brother Mr G and told the respondent that he would not return to the property until she had moved out as he requested she should do.
From November 2016, the applicant did not reside at the Property A property. Instead, he has lived with Mr G or a friend. The applicant accepts that the respondent made attempts to revive the marriage but that he considered the relationship had ended in 2016.
At some point, the parties agreed to participate in family counselling.
On 11 January 2017, the applicant attended at the Property A property with a real estate agent for the purpose of conducting an inspection of the property as a precursor to it being advertised for lease. He claims that this inspection was conducted in the presence of the respondent and that the property was placed on the market without any objection from the respondent.
The applicant also claims that on 14 January 2017, he attended the Property A property and removed furniture from the house so that it could be cleaned and advertised for rent. It was at this point that the respondent became involved in an argument with the applicant in consequence of which she packed her belongings into a car and left. The applicant made arrangements for the property to be let. The respondent contends that the furniture and effects were removed from the property without her consent. She has recorded these events.
A day later, on 15 January 2017, the police made an application at the respondent’s request for an intervention order against the applicant.
On 20 January 2017, the applicant received notice that the respondent had resumed occupation of the Property A property. As a result of the intervention order, the applicant was locked out of the property. The respondent immediately changed the locks. However, as will appear, the respondent has now vacated that property.
On 22 March 2017, reciprocal undertakings were given by the parties in relation to the intervention proceedings.
Procedural history
On 11 April 2017, the applicant commenced a proceeding in this Court seeking interim and final orders respecting the parties’ property in Australia. The application was listed for directions on 13 June 2017.
On 13 June 2017, orders were made appointing a conciliation conference on 24 July 2017. On that date the parties were represented by counsel. The parties were ordered to make discovery of certain documents so as to facilitate the determination of their proceeding. Orders were made fixing the matter for final hearing on 9-10 April 2018 and listing the matter for mention on 21 August 2017.
In addition to the orders referred to above, the parties consented to orders that the respondent have sole use and occupation of the former matrimonial home and that she pay, until further order, all instalments of mortgage including arrears which had accrued since January 2017 together with council rates and other outgoings.
By her response filed on 8 June 2017, the respondent sought interim and final orders including that she have the sole right to occupy the parties’ former matrimonial home.
By an affidavit affirmed on 7 June 2017, the respondent described the circumstances which she considered relevant to the application for an adjustment of property interests, including her employment and the financial and non-financial contributions which she had made. In both this and her trial affidavit filed on 5 April 2018, the respondent referred to treatment that she had been receiving for depression. In her first affidavit the respondent deposed that she considered her health was improving and that this was helping her “to build back up to my regular, full-time working hours.”
The respondent’s psychiatrist also furnished an affidavit to which she exhibited a series of reports spaning the period from February 2017 to April 2018. I have considered each of those reports. The psychiatrist expressed an opinion that the final settlement of the parties’ property proceeding would assist an improvement in the respondent’s condition.
On 24 July 2017, the Court facilitated the conduct of a conciliation conference. The parties appeared at that conference and again, were represented by their lawyers.
For some months, the respondent had the use and occupation of the Property A property pursuant to the 13 June 2017 consent order. During that period, the applicant discovered that the respondent had not complied with the consent order that she pay the outstanding arrears of mortgage payments and outgoings respecting the Property A property. This discovery was made following service of a notice of default by the mortgagee which threatened to take steps to enforce the security if the arrears were not paid promptly. To avert such enforcement the applicant paid the instalments due under the mortgage.
On 3 August 2017, the applicant filed an application in a case seeking urgent relief to compel the respondent to make all outstanding mortgage payments together with certain rates and utility expenses.
Unbeknown to the applicant, the respondent had returned to India in August 2017. She remained there for about one month.
On 11 August 2017, the respondent’s lawyers served an affidavit on the applicant’s lawyers informing them that the respondent had taken stress leave from her employment and had travelled to India. It later emerged that while in India, the respondent together with her parents had initiated a proceeding against the applicant and his parents. The institution of those (the first of four) Indian proceedings appears to have occurred without notice to the applicant.
Following the making of discovery, it emerged that in the period January–February 2017, the respondent had transferred substantial sums from Australia to India. Upon investigation it appeared that from a total sum of approximately AUD$218,000, the respondent had applied about one half of those monies toward the purchase of an apartment in India and the remaining half to her parents. The Court was informed that the sum paid by the respondent in relation to the purchase of an apartment has in fact been paid to a builder for the construction ‘off the plan’ of that apartment but that the builder has not commenced such construction by reason that a further sum of ~$15,000 is payable by the respondent under the construction contract. Further, the respondent says that the builder is now not returning her phone calls. The respondent does not contest that she has unilaterally transferred a significant part of the parties’ asset pool out of Australia and applied it to her own purposes.
In the foregoing circumstances, on 14 August 2017, orders were made by consent which discharged the order made on 13 June 2017 granting the respondent sole use and occupation of the Property A property. In lieu of those orders, the parties consented to an order that the applicant have the sole right and occupation of that property. Further consent orders were made for the respondent to provide discovery of documents so as to require the respondent to make further disclosure of the position as concerned the transfer of sums from Australia to India and the application of those sums.
It was necessary for an order to be made for the respondent to provide the applicant with the keys to the Property A property. When the applicant inspected the property in August 2017 he found the property to be in an unkempt state and it became necessary for it to be cleaned.
In (omitted) 2017, the respondent terminated her employment and again returned to India where she remained until (omitted) 2018.
While in India, the respondent commenced further proceedings.
On 8 February 2018, the matter was the subject of directions at a call over which was conducted by the Federal Circuit Court with a view to enhancing the case management of family law proceedings. On that date, the parties were represented and orders were made confirming the fixture of the proceedings for final hearing on 9-10 April 2018.
On 25 January 2018, an order for the parties’ divorce was made in this Court. The respondent may contend that this order was made ex parte.
On 28 March 2018, the Court of (omitted) granted the application for an interim injunction so as to restrain the applicant from alienating the (Indian property) land pending the trial of the proceeding in which the respondent claimed for maintenance.
On 3 April 2018, the applicant filed an amended initiating application in which he sought relief relevantly as follows:
The Wife be restrained and an injunction be granted restraining her from taking any further steps, and from doing any act or thing to further prosecute the proceedings filed by her in the Civil Judge Senior Division, (omitted) on 3 November 2017.
In the course of the hearing, the applicant made an oral application and was granted leave, without objection, to amend the scope of this relief.
On 5 April 2018, the respondent filed an amended response including a prayer for final relief as follows:
That the husband make a payment to the wife of one half of the equity in relation to the property situate at Property A (sic), in the state of Victoria and the property (agriculture land) owned by the husband in the Village (omitted), India.
That the husband pay maintenance to the wife of $350 per week.
The filing of that amended response is to be seen in the context of the foregoing procedural history including that the respondent has been legally represented throughout this proceeding and that the order setting the matter down for final hearing on 9-10 April 2018 was confirmed at the call over held on 8 February 2018.
Thus the relief claimed by the respondent in the proceeding that had been commenced in this Court was for an order for the payment of a sum representing one half of the equity in the Property A property and the (Indian property) property respectively.
I note that the respondent’s financial statement filed on 7 June 2017 described her current occupation as being that of an (occupation omitted), from which employment she derived an average income of $1,755 per week. By contrast, the respondent’s financial statement sworn on 5 April 2018 stated that the respondent was unemployed and now had no income. This statement did not disclose the position respecting the transfer of monies from Australia, the application of those monies towards the construction of an apartment or the payment to her parents of the balance of those monies.
Each of the parties has filed affidavits and financial statements concerning their respective property claims and contributions. Each of them has filed an outline of case in which they press for the grant of relief as sought by their application and response respectively.
The application for an injunction was supported by an affidavit made by the applicant on 3 April 2018 in which he deposed to the institution of proceedings in India by the respondent and their current status.
In the course of the hearing on 9 April 2018, I drew attention to the respondent’s affidavit affirmed on 5 April 2018 which dealt in a limited way to the applicant’s affidavit made on 3 April 2018. I did so because the respondent’s affidavit did not meet the applicant’s evidence as to the commencement by her of the various proceedings in India. Further, I acceded to a request by the applicant’s counsel that the matter be stood down in order that further instructions might be obtained. I extended an opportunity to the respondent to give viva voce evidence to address those matters. She took up that opportunity. The respondent presented as a well-dressed, articulate and educated person who appeared to have a ready grasp of the issues that were put to her.
In the course of giving her evidence it became apparent that at least one of the Indian Courts is concerned to understand the progress of this proceeding before dealing further with the matter. This may explain the respondent’s submission that she wished the proceeding to be dealt with in its entirety. The possibility of doing so within the available time was forestalled by the necessity to address the application for injunctive relief. Had disclosure of the Indian proceedings occurred in a timely manner, a different result may have followed.
The Indian proceedings
Since August 2017, the respondent has filed four proceedings in India.
First, on 21 August 2017, the respondent and her parents filed a proceeding in India naming the applicant and his parents as defendants and alleging that his family had accepted a dowry at the time of the marriage. The respondent, together with her parents, sought relief including the return of her parent’s dowry, the making of orders to provide for her accommodation and for the payment of maintenance on a monthly basis. A copy of the Plaint by which this proceeding was commenced was not in evidence. It is not clear whether the ‘accommodation’ sought in this claim is represented by or in addition to the apartment which the respondent has purchased ‘off the plan.’
Secondly, the respondent instituted a claim under the Protection of Woman from Domestic Violence Act 2005 (Ind). This claim named as respondents, the applicant together with “Mr T, son of Mr R and Ms S, wife of Mr T all residents of Village (omitted) India, now residents of Property A, Victoria.” This proceeding was filed in India before the Chief Judicial Magistrate at (omitted) India. While a copy of this Plaint was in evidence, it is not clear when the claim was commenced. By her prayer for relief, the respondent claimed for the following:
(1) an order restraining the respondents from dispossessing or in any manner disturbing the respondent from her use of an apartment situate in (Indian Property);
(2) an order directing the applicant to provide her with accommodation and to pay the rent on such accommodation;
(3) an order directing the applicant to pay maintenance of “Rs 1,00,000/- per month” and to do so on the stated bases that:
(a)the applicant was paid the equivalent of “Rs 2,00,000/- per month” as a (occupation omitted);
(b)the applicant owned (omitted) acres of land in (Indian property);
(c)the applicant earned Rs 15,00,000/- annually from the use of that land.
There is little if any evidence concerning the apartment situate in (Indian Property), (omitted), or the respondents use of it.
Notably, the respondent’s proceeding instituted under the Protection of Woman from Domestic Violence Act 2005 claimed:
That no such suit or proceedings for the same cause of action are pending or decided by any court or law.
That after marriage the petitioner has come to village (omitted) and permanent residence of petitioner is at (omitted) which is in the territorial jurisdiction of this Hon’ble court. Hence this Hon’ble court has got jurisdiction. (Emphasis added)
Thirdly, on 3 November 2017, the respondent instituted a claim in which she named the applicant as sole respondent. This proceeding was filed in India before the Civil Judge, Senior Division at (omitted) India. The Plaint, entitled “Suit for recovery of maintenance”, detailed the particulars of certain land owned by the applicant in (omitted) India (while omitting reference to the interest of the applicant’s brother) and pleaded that the “suit of the plaintiff is very strong and there is every hope of its success.” It recited the circumstances of the parties’ marriage, the dowry and that following the marriage the applicant had gone to Australia and taken all of the domestic articles from her house. It pleaded that the respondent had no moveable or immoveable property or any other source of income. The Plaint identified the applicant’s earnings from his work as a (occupation omitted). It pleaded that he was “hale and hearty” but was quarrelsome and very cruel towards her. It also pleaded that the applicant:
In order to escape his duty to pay maintenance to the plaintiff and to defeat her right to recover maintenance . . . wants to alienate the suit property [and that he had] no right to alienate the suit property . . .
By the prayer for relief, the respondent claimed for an interim injunction restraining the applicant from alienating the suit property.
Fourthly, on 3 November 2017, the respondent instituted a further claim, again naming the applicant as sole respondent. This proceeding was also filed in India before the Civil Judge, Senior Division at (omitted) India. The Plaint was entitled “Suit for recovery of arrears of maintenance.” The content of this Plaint substantially followed the form of the claim for recovery of maintenance referred to above but differed in that the respondent pleaded the following matters:
(a)a claim was made for the imposition of a charge over the (Indian property) land so as to secure the claim for payment of the arrears of maintenance in the event that the claim was successful;
(b)it was claimed that repeated requests had been made of the applicant, both for the payment of maintenance and for him not to alienate the (Indian property) land, which requests he had refused;
(c)it was pleaded that the respondent’s cause of action for the payment of maintenance had arisen on 22 April 2017 when the applicant had “turned out the plaintiff from his house”;
(d)the bases on which the Indian Court was seized of jurisdiction was repeated;
(e)it was also pleaded that no such suit or proceedings for the same cause of action was pending or decided by any court of law; and
(f)in addition to the plea for the grant of a charge over the (Indian property) land, the respondent also sought a permanent injunction so as to restrain the applicant from alienating his interest in that land.
It was common ground that each of the second, third and fourth proceedings is a civil proceeding and that the matters set out in the Plaint were signed by the respondent and verified by her counsel.
It may be noted that in none of the verified Plaints had the respondent made any reference to her having: (1) lived in Australia from 2007 until (omitted) 2017; (2) held permanent residency in Australia; (3) held paid employment in Australia until (omitted) 2017; (4) transferred ~AUD$218,000 from Australia to India in 2017; (5) applied ~AUD$100,000 of those monies toward the purchase of an ‘off the plan’ apartment; (6) paid her parents the balance of that AUD$218,000; (7) secured an order that she should occupy the Property A property. Nor did any of those Plaints acknowledge that the applicant’s brother held (at least) a half interest in the (Indian property) land. It also appears that in none of the proceedings did the respondent disclose the fact of the present proceedings to the Indian Court or that this proceeding had been set down for final hearing in April 2018.
The applicant retained solicitors in India to represent him in relation to the proceedings. He deposed that his uncle was currently meeting the legal expenses associated with his defence of those proceedings. On 24 March 2018, the applicant’s solicitors attended a hearing in relation to the respondent’s application for an interim injunction to restrain him from alienating the (Indian property) land. It is apparent that the applicant contested the application on several bases including that: (1) the respondent did not in fact reside in India (omitted) but was a permanent resident of Australia; (2) the Civil Court accordingly had no jurisdiction to entertain the claim; (3) the applicant’s brother owned the entire beneficial interest in the (Indian property) land; and (4) the respondent had shown a demonstrable a lack of clean hands.
On 28 March 2018, the Court of (omitted), India, (omitted), published reasons for judgment on the application for an interim injunction. As noted above, orders were made granting the application. The applicant tendered reasons given on 28 March 2018 in the Court of (omitted), India (omitted), (Civil Suit No (omitted)), which addressed the respondent’s application to restrain the applicant from alienating the (Indian property) land.
The reasons for judgment given by the Court of (omitted) India, identified the nature of the application for an interim injunction and set out in detail the history of the matter as contended for by the respondent.
Those reasons recited that once the applicant had been given notice of the proceeding he had objected to the Court having jurisdiction to deal with the matter on the basis that the respondent was not and had never been a resident of India (omitted), that she had been a permanent resident of Australia since 2007 and that the parties had been divorced on 25 January 2018. The reasons recognise that: (1) the applicant had instituted a proceeding in this Court on 11 April 2017: (2) those proceedings were pending; (3) the respondent was a party to this proceeding; (4) the respondent had filed a response; (5) an interlocutory order had been made and that the proceeding was set down for trial; (6) the respondent had transferred substantial sums to India and so was capable of maintaining herself. The reasons also recorded the applicant’s contentions that the respondent had held remunerative employment in Australia and that no demands had been made upon the applicant or his parents for the return of a dowry.
The reasons of the Court of (omitted) India, also noted the applicant’s objection that the respondent was debarred from filing the Plaint on the basis that a “suit regarding the same subject matter is already underway in a competent court being the Federal Circuit Court of Australia.” From my examination of the reasons given on 28 March 2018, the Court did not address that objection, confining itself to the determination of whether an interim injunction should be granted.
The Court of (omitted) India concluded that:
. . . learned counsel for the defendant has been unable to convince this court as to what irreparable loss would be caused to the defendant if he is restrained from alienating the suit property till the final decision of the case. On the other hand the plaintiff will be left with no remedy available to her if the defendant is able to dispose off (sic) the property and this court ultimately finds plaintiff to be entitled to maintenance amount at the time of final decision of the case. Keeping in view of the aforesaid discussion, prima case and balance of convenience exists in favour of the plaintiff and she is likely to suffer irreparable loss if defendant is not restrained (sic) from alienating the suit property as mentioned in the head note of the plaint till the final decision of the case. Consequently, stay application is allowed and defendant is restrained from alienating the suit property as mentioned in the head note of the plaint in any manner till the final decision of the case. However, anything observed here in above shall not effect affect the merits of the case.
Those reasons also confirmed that the Court would need to ‘probe deeper’ into the merits of the case before any final decision was made.
The reasons of the Indian Court also record that the following issues were framed as arising from the parties’ pleadings, including:
1.Whether the plaintiff is entitled for recovery of arrears of maintenance of Rs. 3,00,000/–, as prayed for? OPP;
2.Whether the plaintiff is entitled to permanent injunction as prayed for? OPP.
3.Whether this court has jurisdiction to try the present suit? OPD
4.Whether the plaintiff has not approached the court with clean hands? OPD
5. – 6. . . .
The reasons of the Court of (omitted) India, delivered on 28 March 2018 confirm that both parties were represented by their advocates on the contested application for interim relief.
While the Court of (omitted) India has made an interim order restraining the applicant from alienating his interest in the (omitted) land, the reasons make plain that the matter “require[s] a deeper probe, which will come only in light at the time when the parties will lead evidence in their respective favour.” The Court of (omitted) India has recognised that interim relief was granted only to the extent necessary to preserve the status quo until trial. In particular, no orders have been made granting the respondent any maintenance. Nor has a charge been granted over the (Indian property) land.
The respondent’s evidence given at the hearing before me indicated that the Court of (omitted) India is also concerned to know what orders are made in this proceeding before making any final orders.
The Court of (omitted) India has adjourned the matter to 25 April 2018.
Applicable principles
Jurisdiction
An anti-suit injunction operates to restrain a party from commencing or continuing a proceeding (or claim) in another forum permanently or during the pendency of the proceeding in which the injunction is granted. The remedy has been described as a vital tool for achieving practical justice where the pursuit of foreign litigation is considered clearly wrongful by local and possibly foreign standards: Raphael, The Anti-suit Injunction (2008) (Oxford University Press), at [1.18].
The jurisdiction of a domestic court to enjoin a party from commencing or continuing a proceeding in a foreign court is not directed against that court but against the party that is seeking to litigate in that forum. The jurisdiction operates in personam and is exercised where it is appropriate to avoid injustice: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 372, 391, 395. The learned authors of Meagher, Gummow and Lehane’s Equity, Doctrines & Remedies (5th Ed), [2015] at [21-165] state the principle as follows:
The court of the forum has power over persons properly subject to its in personam jurisdiction to make orders in protection of the jurisdiction and its processes, including the integrity of its judgments.
The in personam nature of the order is an essential feature of an anti-suit injunction. It is not open to objection as having extra territorial operation: Raphael, The Anti-Suit Injunction [3.19]; cf Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act), sub-s 10(3).
In defining the scope of the jurisdiction to grant anti-suit relief, extensive consideration has been given to the distinction between the jurisdiction that is held or conferred on particular courts. The Federal Circuit Court is a court created by statute, a court of record, a court of law and equity and has such original jurisdiction as is vested in it by laws of the Commonwealth: FCC Act, ss 8(3), 10(1)-(2). While it has no inherent jurisdiction, the Court also has the implied powers which are necessary for the operation of the powers that are expressly conferred on it by statute: cf DJL v The Central Authority (2000) 201 CLR 226, [25]ff; Teo v Guan (2015) 53 FamLR 248.
While this is not the occasion to examine those issues in detail, some observations are necessary. First, this Court has jurisdiction to decide certain matters arising under the Family Law Act 1975 (Cth) and has power to grant an interlocutory injunction: FCC Act, ss 8(3), 10(1)(a), 15(a); Family Law Act 1975 (Cth), ss 39(5AA), 114(3). Relevantly, it has jurisdiction in relation to a matrimonial cause for a divorce and applications to resolve the parties’ entitlements, if any, to property or maintenance. Secondly, in conferring jurisdiction on courts, the Family Law Act has been considered to contain an exhaustive code of the available remedies: cf Teo v Guan (2015) 53 FamLR 248 at [67]. Thirdly, any power conferred by the FCC Act to grant an injunction is thus constrained by the principle that, in exercising jurisdiction, the court must be authorised to grant an injunction by the Family Law Act: Teo v Guan 53 FamLR 248 at [62] citing Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, [33]. Fourthly, the Federal Circuit Court should have precisely the same powers in the exercise of federal jurisdiction as does the Family Court, including to grant an anti-suit injunction: cf sub-s 42(1) Family Law Act; Teo v Guan 53 Fam LR 248 at [81], [87], [106]. Fifthly, the power to grant an injunction conferred by sub-s 114(3) is, however, only available in exercise of jurisdiction otherwise conferred by the Family Law Act: Teo v Guan 53 FamLR 248 at [90]-[100] and cases cited. Sixthly, as concerns the power to grant an anti-suit injunction, such power derives expressly and by necessary implication from ss 34 and 114(3) of the Family Law Act.
It is necessary that a court – inferior as well as superior – should have power over its own processes. Such power arises from the necessity to be able to take measures to control abuses of the court’s processes or proceedings. The concept of ‘necessity’ is to be understood as:
. . . identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies [sought] . . . it does not have the meaning of ‘essential’; rather it is to be ‘subjected to the touchstone of reasonableness’.
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, [51]; Teo v Guan (2015) 53 FamLR 248 at [62]; Hong & Cao [2018] FamCA 40 at [88].
Power to stay or restrain proceedings
It is settled that the “power to stay a proceeding on the ground of forum non-conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being abused.” Cigna 189 CLR at 391. In Cigna, the plurality observed that the counterpart of the power to prevent an abuse of the court’s processes was a power to protect the integrity of those processes “once set in motion” and that that protective power may, in some cases, authorise the issue of an anti-suit injunction. Their Honours further observed that the power to grant an anti-suit injunction was not restricted to closed categories.
Consequently, an anti-suit injunction may be granted when it is necessary for the administration of justice to protect the court’s own processes or proceedings: Cigna at 372-373, 391-392. The doctrinal basis of the jurisdiction to grant an anti-suit injunction is grounded upon the necessity of the court being able to protect the integrity of its processes: Cigna 189 CLR at 391-2. The doctrinal basis of the jurisdiction is well settled: Australian Broadcasting Authority v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [94]-[95]; Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43, [56]; PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36, [68]; Chen v Monash University [2016] FCAFC 66, [34]-[35]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3 at [27] (Kiefel CJ). ^
The Family Court of Australia may grant an anti-suit injunction: Hong & Cao [2018] FamCA 40; Underwood & Underwood (2017) FLC 93-815; Lan & Hao (No 2) (2017) FLC 93-795; Kent & Kent (2017) FLC 93-792; Cole & Abati (2016) FLC 93-705; [45]; Hughes & Hughes [2014] FamCA 12. So too, the Federal Circuit Court of Australia may do so: Teo v Guan 53 FamLR 248 at [49]-[59] and cases cited.
It is not determinative that one party has instituted an application for particular relief in one forum and that associated relief has been claimed in another. In Dobson and Van Londen (2005) FLC 93-225, the Full Court identified the need to treat issues arising between husband and wife as constituting a single controversy when considering an application for a stay or anti-suit injunction:
. . . the unity of matrimonial causes should be the starting point . . . of any consideration of an application for such an injunction.
The definition of matrimonial cause located in s 4 of the Family Law Act extends, relevantly, to include proceedings in relation to both property and spousal maintenance: see definition of ‘matrimonial cause’ at paras (caa) and (ca). Applying the principles stated by the Full Court in Dobson and Van Londen, the appropriate starting point would then be to treat issues arising between the parties in relation to property and spousal maintenance as constituting a single controversy when considering an application for a stay or an anti-suit injunction.
The learned authors of Equity, Doctrines & Remedies at [21-165] state that the court will exercise the jurisdiction to grant relief where it is deemed necessary to further the proper administration of justice, including in cases where it is necessary to restrain a party from commencing proceedings:
. . . outside the jurisdiction when the local jurisdiction would provide the natural forum for litigating the dispute, justice could be done between the parties in the local forum at substantially less inconvenience.
Unconscionability
The grant of an anti-suit injunction does not necessarily involve the exercise of equitable jurisdiction. In Lenah Game Meats at [94], Gummow and Hayne JJ (Gaudron J agreeing) observed that in Cigna the plurality had emphasised that the grant of an anti-suit injunction did not involve the exercise of the power derived from the Court of Chancery to grant equitable relief in aid of a legal right and was to be distinguished from an injunction grounded upon the breach of a contract not to sue or not to sue in a foreign jurisdiction.
Rather, the court may exercise jurisdiction to restrain a person from bringing or continuing a proceeding where the exercise of such legal right involves unconscionable conduct or the unconscientious exercise of that right: Cigna (1997) 189 CLR 345 at 373, 392, 394; Lenah Game Meats (2001) 208 CLR 199, [93]. So too, the learned author of The Anti-suit Injunction observes at [4.28] that, where no substantive legal or equitable right has been infringed, an anti-suit injunction may be granted on the basis that the foreign proceeding is vexatious or oppressive. To that end, Raphael’s analysis of the circumstances in which relief may be granted maintains distinctions between the grant of relief by way of non-contractual, contractual and other anti-suit injunctions. An application of the present kind is properly classified as a non-contractual anti-suit injunction.
Principles of unconscionable conduct do not operate at large according to some idiosyncratic notion of what is just in the circumstances. An applicant must demonstrate a legal, statutory or equitable basis on which it is just and convenient that an injunction should issue: Lenah Game Meats (2001) 208 CLR 199, [96]-[99], [105] (Gummow and Hayne JJ); see also at [17]-[18] (Gleeson CJ), [59]-[60] (Gaudron J), [159(4)], (Kirby J) and [246], (Callinan J). However, where an application for a non-contractual anti-suit injunction is made, the applicant is generally not asserting an independent cause of action to restrain the foreign suit but simply the existence of a right not to be sued in a foreign court: Lenah Game Meats (2001) 208 CLR 199, at [93] citing Associated Newspapers Group Plc v Insert Media Ltd [1988] 1 WLR 509, 514 (Hoffmann LJ). Where a non-contractual anti-suit injunction is granted, the relief is given because it is concluded that: (a) the respondent should be restrained from their unconscionable conduct in commencing or continuing a foreign proceeding, or; (b) conversely, the applicant should have relief in aid of the exercise of a legal right to determination of the proceeding as commenced in the selected forum. In Cigna, the plurality identified the power to restrain foreign proceedings that were vexatious or oppressive in the relevant sense as being available to exercise where it would be unconscionable for the respondent to pursue a claim in the foreign court: 189 CLR at 394; see also The Anti-suit injunction at [4.14]ff.
Once it is concluded that the bringing or continuance of the proceedings was or would be unconscionable, the court may grant an injunction “no matter where the proceeding has been brought”: Cigna 189 CLR at 392. Although this general proposition operates where proceedings have been commenced in a foreign court, it should, however, be understood as being confined by constitutional considerations which dictate that “only in the rarest of circumstances should a party within the jurisdiction of one state of Australia be restrained from continuing proceedings in another state of Australia”: Equity, Doctrines & Remedies at [21-165].
The requirement to demonstrate that it would be unconscionable for a party to commence or continue a proceeding initiated in a foreign forum is necessary since the grant of relief, although interlocutory in nature, has the practical effect of deciding the dispute as to the forum in which the trial on the substantive claim will be determined: Cigna 189 CLR at 397; Lenah Game Meats 208 CLR at [93]; Lederer & Hunt (2007) 36 FamLR 587, [4]-[5] (Bryant CJ, Finn and Boland JJ).
Caution
For that reason it has long been recognised that particular caution is required before granting such relief: see, eg, Tringali v Stewardson, Stubbs & Collette (1966) 66 SR (NSW) 335, 344 (F.C.); Cigna, 189 CLR at 372, 396. The degree of caution that is warranted will vary according to the circumstances of the particular case. For example, in Henry v Henry (1996) 185 CLR 571 at 590, in addressing a forum non conveniens application, the distinction was recognised as between proceedings in two jurisdictions which involved the same subject matter on the one hand, or the same issue on the other. And in Cigna, Brennan CJ observed at 372 that the approach to the exercise of jurisdiction was different where the foreign court was the only court having jurisdiction to grant a particular remedy: see also per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ at 393, 395.
By contrast, in Cigna at 394 the plurality endorsed the view that one category of case in which a foreign proceeding was to be viewed as vexatious or oppressive was where there was a ‘complete correspondence’ between the proceedings or ‘complete relief’ was available in the local forum. To similar effect, the learned author of The Anti-suit Injunction while recognising that the mere fact of parallel proceedings in two jurisdictions did not establish that the foreign proceeding was vexatious or oppressive, considered at [5.03] that:
However, the greater the positive and voluntary involvement of the [defendant], . . . and the longer the [local] action has been allowed to proceed before the commencement of the parallel foreign proceedings, the stronger the case for an injunction.
Raphael, recognises the undesirability of concurrent proceedings being conducted in different forums in respect of the same subject matter.
A further reason why caution is warranted is in recognition that the grant of relief may interfere with the processes of the foreign court and so be perceived as being in breach of comity: Cigna, 189 CLR at 395-396. The plurality endorsed the statement that comity neither arose as a matter of absolute obligation nor as a matter of mere courtesy but:
. . . it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard to both international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws. (189 CLR at 396 quoting Hilton v Guyot (1895) 159 US 113, 163-4).
However, in emphasising that caution is warranted in relation to the grant of an anti-suit injunction, their Honours rejected the proposition that an applicant should in general be required to first apply to the foreign court for a stay of the proceeding in that court: 189 CLR at 396; Raphael, The Anti-Suit Injunction at [5.38] citing Cigna; see also Hong & Cao [2018] FamCA 40 at [88(c)].
Vexatious or oppressive proceedings
In Cigna at 372, Brennan CJ considered that it was not possible to define in advance the circumstances in which the court would enjoin a party from commencing or continuing a proceeding in a foreign court, but held that it was necessary to conclude that such circumstances meant that it was unconscionable for the party to do so.
Contrastingly, the learned authors of Equity, Doctrines & Remedies at [21-165] consider that the true basis of the jurisdiction is that the foreign proceedings constitute an abuse of process and that for this reason, it is not sufficient to show that the foreign country is a forum non conveniens. The learned authors considered that it must also be demonstrated that the commencement or continuation of the proceedings in the foreign forum would be vexatious or oppressive. The institution or continuance of proceedings in a foreign forum may be found to be subjectively or objectively vexatious or oppressive: The Anti-suit Injunction at [5.05] – [5.06]; cf Hong & Cao [2018] FamCA 40 at [88(b)].
Where an anti-suit injunction is sought, the content of the expressions vexatious or oppressive bear a particular denotation. Each of those expressions bear an extended meaning in relation to a stay of foreign proceedings and those extended meanings are equally applicable where an anti-suit injunction is sought. The commencement or continuation of proceedings in a foreign forum will be oppressive in the requisite sense where it is seriously and unfairly burdensome, prejudicial or damaging. So too, such conduct will be vexatious where it is productive of serious and unjustified trouble and harassment: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, 555-557; Henry v Henry 185 CLR 571, 579; Cigna 189 CLR, 391; Hong & Cao [2018] FamCA 40 at [88(a)]; see also The Anti-Suit Injunction at [4.28].
In Australia, the test in a forum non conveniens application is whether the forum selected by the plaintiff is clearly inappropriate, rather than whether there is some other forum that is clearly more appropriate. The court will hold that the forum selected by the plaintiff is clearly inappropriate where the continuation of the proceedings in that forum would be oppressive in the sense that it is seriously and unfairly burdensome, prejudicial or damaging, or vexatious in the sense of being productive of serious and unjustified trouble and harassment: Voth 171 CLR 538, 558 approving Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, 247-8 (Deane J); Henry v Henry 185 CLR 571, 587, 588; Cigna 189 CLR 362, 390-391.
Relevant considerations
In Henry v Henry at 587, the plurality endorsed the principle stated in Voth that in determining whether the forum selected by the plaintiff was clearly inappropriate, valuable assistance was to be gained from a consideration of any relevant connecting factors together with any legitimate personal or juridical advantage to the plaintiff (which latter factors were to be regarded as relevant but not decisive considerations). The plurality considered that the substantive law of the local forum should be seen as a significant but not exclusive factor in the determination of the application. Further, their Honours also endorsed the proposition that the fundamental question was “where the case may be tried suitably for the interests of all the parties and for the ends of justice”: Henry v Henry 185 CLR at 588-9 citing Spiliada Maritime Corporation v Consulex Ltd [1987] AC 460, 482 (Lord Goff).
Henry v Henry was significant in holding that in a family law setting the Voth test was to be applied in a forum non conveniens application.
In Regie Internationale des Usines Renault SA v Zhang (2002) 210 CLR 491, at [24]-[25], Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ referred to Henry v Henry with evident approval and emphasised that the test in a forum non conveniens application is whether the selected forum was clearly inappropriate.
The requirement to demonstrate that the local forum is inappropriate is accordingly a necessary but insufficient ground for granting a stay: Zhang at [78]-[82] see also Atlasnavios Navegacao, LDA v The Ship “Xin Tai Hai” (No 2) (2012) 215 FCR 256, [110]; Suzlon Energy Ltd v Frankfurther Bankgesellschaft (Schweiz) AG [2012] FCA 465, [39].
This reflects the principle that an Australian court must exercise jurisdiction that is conferred on it, except where the selected forum is established to be a clearly inappropriate forum: Voth, 171 CLR at 559.
In Deslandes & Deslandes [2015] FamCA 913 at [20] Kent J, citing Zhang endorsed the proposition that:
The clearly inappropriate test avoids a mere comparison between the competing forums and focuses on the extent to which the continuation of the proceedings in the Australian court should be regarded as inappropriate. The question of whether an Australian court is a clearly inappropriate forum [directs] attention to . . . the inappropriateness of that court and not to the appropriateness or comparative appropriateness of the foreign forum.
And in Hong & Cao [2018] FamCA 40 at [88(f)], Hogan J stated that “in cases in which the ascertainment of the natural forum is a complex and finely balanced question, the Court may more readily conclude that the selected forum is not a clearly inappropriate forum.”
Moreover, the test in granting a forum non conveniens application differs from the test to be applied in the grant of an anti-suit injunction. First, no question of the grant or refusal of an anti-suit injunction arises if the court concludes that the local forum is clearly inappropriate. Secondly, if the local forum is not clearly inappropriate, it must still be concluded that an anti-suit injunction is appropriate in all the circumstances. Thirdly, in some cases the grant of anti-suit relief may require that there is “an equity which entitles one party as against the other from proceeding in a foreign court”: Cigna, at 372 (Brennan CJ diss’). Fourthly, an exception to the requirement that the applicant must show some equity which grounds the entitlement to relief is in those cases where the anti-suit injunction is sought to protect the proceedings or processes once commenced in the local court. Fifthly, it may, in some cases, be expedient to require that the applicant seek a stay or dismissal of the foreign proceeding. Sixthly, the applicant for an anti-suit injunction must proceed in accordance with the usual practice on an interlocutory injunction; namely, to demonstrate that there is a serious question to be tried and that the balance of convenience favours the grant of relief: Cigna, 189 CLR at 398 (Dawson, Toohey, Gaudron, McHugh Gummow and Kirby JJ).
The degree to which it is necessary to establish a serious question to be tried will differ. To obtain an interlocutory injunction what must be shown is a “sufficient colour of right to the final relief, in aid of which the interlocutory injunction is sought”: Lenah Game Meats at [11], (Gleeson CJ). The Chief Justice observed at [12] that anti-suit injunctions involved an expanded area of jurisprudence and that Lenah Game Meats was not such an application.
Where the relief is sought on the basis that the commencement or continuation of the proceeding in the foreign forum is vexatious or oppressive in the extended Voth sense discussed above, the applicant is not seeking relief on the basis of infringement of some legal or equitable right, apart from the right to the hearing and determination of the claim in the selected forum. In Hong & Cao [2018] FamCA 40 at [88(h)], Hogan J stated that to determine whether Australian proceedings are vexatious and oppressive in the relevant sense, “regard must be had to the controversy as a whole and the general circumstances of the case, taking into account the true nature and full extent of the issues involved.”
Upon the proper application of these principles, the court is to conduct an evaluative consideration of whether the forum selected by the plaintiff is clearly inappropriate as distinct from a comparative analysis of the relative advantages of the local and foreign forums: Henry, at 581: Hong & Cao [2018] FamCA 40 at [88(e)]. It should not approach the application on an ex post facto analysis by inquiring whether there are proceedings on foot in a foreign forum, then to characterise the institution of proceedings in the local forum as constituting an undesirable duplication of proceedings and so conclude that the selected forum is clearly inappropriate: Henry, 185 CLR at 581, 590.
Equally, undue weight should not be given to an asserted prima facie right of the party who has invoked the local jurisdiction to insist upon its exercise: Henry, 185 CLR at 588-599. To employ such an approach only serves to distract attention from the central inquiry whether the forum selected by the plaintiff is clearly inappropriate.
A non-exhaustive list of the considerations that may be relevant to the grant or refusal of an application for an anti-suit injunction include:
(a)no question will arise unless the courts of the different countries have jurisdiction with respect to the parties and their marriage;
(b)whether the courts of each jurisdiction recognise the others orders. It may be dispositive of the application if the orders of the foreign court are not recognised by an Australian court. If those orders are recognised in Australia, it is necessary to consider whether orders of an Australian court can be enforced in the foreign court and the relative ease with which this can be done;
(c)whether either forum can provide more effectively for a complete resolution of the matters involved in the controversy;
(d)the progress and status of the proceedings;
(e)the connection of the parties and their marriage with each of the jurisdictions and the issues upon which their relief might depend;
(f)any language disadvantage of a party or their inability to participate on an equal footing in the foreign proceeding;
(g)the need which may be created in the foreign forum for an investigation of the parties’ financial affairs in Australia when the greater part of their property and financial resources were located in Australia and would have to be examined here in any event.
See Henry & Henry, 586, 592; Dobson and Van Londen at [69]; Hong & Cao [2018] FamCA 40 at [88].
More recently, in Hong & Cao [2018] FamCA 40 at [88(j)], Hogan J distilled a non-exhaustive list of factors to which regard may be had:
(i)the availability of an alternative forum; and
(ii)whether the other potential forum will recognise Australian orders and vice-a-versa and the ease of enforcement in each country; and
(iii)which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy; and
(iv)the order in which proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction; and
(v)the connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions; and
(vi)the governing law of the dispute; and
(vii)the place of residence of the parties; and
(viii)factors of convenience and expense, such as the location of witnesses; and
(ix)whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing; and
(x)any legitimate juridical advantage in litigating in either jurisdiction; and
(xi)the general circumstances of the case, taking into account the true nature and full extent of the issues involved.
Hogan J granted an anti-suit injunction on the substantive basis that the past interactions of the parties were highly suggestive of future rancour and, having regard to the costs which would be incurred by the conduct of duplicate proceedings, that it was desirable to do so. Her Honour concluded that it was both oppressive and vexatious to permit even the possibility that there should be the continuation of dual property proceedings in which financial support was also being sought.
Overview
It has long been recognised that there may be considerable inconvenience and embarrassment to the parties if the same issue is to be fought out in the courts of different countries, upon the basis of different regimes and very likely permitting of entirely different outcomes: Henry, at 590-591 citing Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277, 281 (Dixon J); see also The Anti-suit Injunction at [5.04]. Further, the plurality cautioned that the local proceeding should not necessarily be stayed once it was concluded that one or other of the proceedings was vexatious or oppressive in the Voth sense. Rather, the fact that there were simultaneous proceedings in different countries with respect to the same subject matter was highly relevant to the question whether the local proceeding should be considered to be vexatious or oppressive and that all courts should strive to avoid such a result.
Ultimately, “the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved”: Henry v Henry 185 CLR at 593. In Hong & Cao [2018] FamCA 40 at [88(b)], Hogan J observed that the power was:
. . . a discretionary power, in the sense that its exercise involves a subjective balancing process in which relevant factors vary and in which:
(i)the question of the comparative weight to be given to particular factors in the circumstances of a particular case; and
(ii)the decision about whether the power should be exercised,
are both matters for individual judgment and, to a significant extent, matters of impression; . . .
Consideration
As the application for interlocutory relief arose in the circumstances described above, it was common ground that the Court must determine the application on questions of fact which remain in dispute.
The parties made no submissions concerning the jurisdiction of the Court to make the orders sought or as to the availability of the power to do so in the circumstances of this case. Having regard to the caution that is required in an application of this kind and in light of the orders that have been made, it was necessary to give due consideration to each of those matters. Once questions of jurisdiction and power have been resolved the only question is one of discretion: Federal Treasury Enterprises (FKP) Sojuzplodoimport v Spirits International NV [2007] FCAFC 43 at [11], (Black CJ, Allsop and Middleton JJ)
I have had regard to the controversy as a whole and to the general circumstances of the case. I have described at [5]-[81], the background to the matter, the events which occurred during its procedural history and the circumstances relating to the four Indian proceedings. I have taken each of those matters into account in assessing the true nature and full extent of the issues involved.
The applicant emphasised that the respondent had advanced a claim for the adjustment of the parties’ property interests in this Court. She has done so by way of her original response and in pursuing or supporting a request for this Court to conduct a conciliation conference. The Court has dedicated some part of its scarce resources to facilitate the conduct of that conciliation conference. The matter had been set down for final hearing. More recently, the respondent amended her response so as to seek an order in her favour for the payment by the respondent of a sum reflecting her station. The position that was advanced in the amended response was reiterated in the respondent’s outline of case.
At the commencement of the hearing, counsel for the respondent requested that the matter be stood down in order that further instructions could be obtained. That request was granted. When the hearing resumed the respondent pressed that the proceeding should be heard and determined in its entirety. The adoption of that position was only consistent with a desire that the respondent pressed for the determination in this Court, including her claim for an order for the payment to her of a sum reflecting her claim to a share of the parties’ interests (if any), in the property held in Australia and India.
The mere coexistence of proceedings in different countries does not in or of itself establish that either proceeding is vexatious or oppressive.
In the present application, the anti-suit injunction was sought as between the same parties whose proceedings arose out of their marriage and substantially the same controversies. In each of the proceedings, to at least some extent, orders are sought respecting the parties’ property interests and as to spousal maintenance. On those facts, I considered that the commencement and continuation in India of four sets of civil proceedings brought some months after the institution of the proceeding in the Federal Circuit Court was prima facie vexatious or oppressive in the sense explained in Voth: cf Underwood & Underwood (2017) FLC 93-815 at [22]. Accordingly, relief by way of anti-suit injunction is available once it is shown to be necessary for the administration of justice so as to protect the court’s own processes.
The necessity to consider whether relief should be given arises in the context that the applicant initiated an application for determination of the parties’ property interests. The respondent filed a notice of address for service, thereby submitting to the jurisdiction of the Court. Since that date she had actively participated in this proceeding, including in the manner described at [37]-[61] above. The present proceeding was set down for hearing at a mention on 13 June 2017. Orders have been made for the orderly preparation of the matter for trial. The parties have appeared by their legal representatives at each stage of the proceeding and many of the orders have been made by consent. The final hearing has been aborted only by reason of the late discovery of the institution of the four proceedings in India following the respondents travel to India.
The disposition of the matter has been complicated by the respondent’s unilateral transfers of monies which represent a substantial part of – and may be added back to – the parties’ asset pool. An anti-suit injunction may go in aid of a proceeding involving a determination whether there has been a devolution of assets: cf National Mutual Holdings Pty Ltd Sentry Corp (1989) 22 FCR 209 (Gummow J).
I treat as the starting point that there should be a unity of the parties’ matrimonial causes. A decree for their divorce has now been made in Australia. This proceeding entails the determination of both property and spousal maintenance claims. By orders made on 13 June 2017, those claims were to be tried in this Court on 9 April 2018.
Each of the parties has secured permanent residence in Australia and there is every reason to conclude that Australia is the natural forum for the determination of their claims. They have each lived in Australia for some years. In each of those respects the present application bears marked similarity to In the marriage of R and S Khademollah [2000] FamCA 1045. It was not submitted that the Federal Circuit Court was a clearly inappropriate forum for the determination of those claims and I am satisfied that the Federal Circuit Court is neither an inappropriate, nor clearly inappropriate, forum for the determination of their claims.
I also consider that the respondent’s conduct in instituting and pursuing her proceedings insofar as they entail claims for the recovery of maintenance, arrears of maintenance and a charge to secure such relief was unconscientious by reason that such conduct was vexatious and oppressive in the extended Voth sense. To adapt the observations in Cigna at 394, there is a near complete correspondence between the Australian and Indian proceedings and so far as concerns the property over which this Court has jurisdiction, it is able to grant complete relief in the forum selected by the applicant. The substantive law offered by the Family Law Act is well capable of providing a means for the just and equitable determination of the parties’ claims both as to their property interests and any claim for spousal maintenance: see ss 72, 79. The availability of that substantive law is a significant consideration.
The commencement and continuation of the Indian proceedings is oppressive because it is seriously and unfairly burdensome, prejudicial or damaging to the applicant. It is vexatious because it is productive of serious and unjustified trouble and harassment to him. I take account of both the duplication and cost of so many proceedings including that it is a modest asset pool: Ashforth & Ashforth [2010] FamCA 37, [44]. Had the orders made in 2017 to regulate the final hearing in April 2018 been complied with, it may well have been possible for the present proceeding to have been heard and determined.
I am acutely conscious that principles of comity of nations inform the caution that is required in the determination of the present application and I observe that the Court of (omitted) India has likewise expressed concern to understand the progress of this proceeding before making a final determination of the claim for maintenance and any ancillary relief as sought in India.
I have considered the reasons of the Court of (omitted) India given on 28 March 2018. On one view of the matters addressed in those reasons, the respondent moved to India, secured an Aadhar Card evidencing her address in (omitted) India and thereby secured proof to satisfy a jurisdictional requirement of the Court of (omitted) India that she was now a resident of that locality (and was not in fact residing in Australia). Further, on another view of the evidence it seems that the respondent relied upon the transfer of substantial sums from accounts to evidence the applicant’s supposed capacity to meet her claims for the payment of maintenance and arrears of maintenance. However, as the judge in charge of the maintenance claim has clearly recognised, these and other matters “require a deeper probe, which will come only in light at the time when the parties will lead evidence in their respective favour.” In short, the Court of (omitted) India has recognised that the relief granted by way of interlocutory injunction is necessary only so as to preserve the status quo.
Insofar as the respondent submitted that the matter would be dealt with more appropriately in India by reason of supposed cultural sensitivities attaching to the claims, the principles considered above at [110] make clear that the Court should not determine the application on the basis of the appropriateness or comparative appropriateness of the foreign forum.
The present application may also be contrasted with a case in which the parties were not identical or in which relief being claimed in India could not be claimed in Australia. As to this, it was common ground that an Australian court has no jurisdiction to determine a claim in the nature of an application for the return of a dowry. However, as the plurality observed in Henry v Henry 185 CLR at 590, even where the issues or parties in the foreign proceeding are not precisely the same, it may nonetheless be appropriate to grant a temporary stay to allow the factual issues to be decided in the foreign proceedings. Those observations are perhaps apposite in relation to the proceeding instituted in August 2017 by the respondent and her parents against the applicant and his parents seeking the return of the parents’ alleged dowry. Although the applicant did not seek an anti-suit injunction in relation to the entirety of that proceeding, the claims made respecting the claim for return of a dowry include claims that the respondent be provided with accommodation and paid maintenance on a monthly basis: see above at [64].
I have considered the range of substantive and discretionary considerations set out at [116]-[117] above. I received no detailed submissions in relation to them. I do not identify any particular factor which militates against the grant of relief. I discern no language barriers to the conduct of the proceedings in Australia. As concerns the status of the various proceedings, the proceeding before this Court had originally been fixed for final hearing on 13 June 2017. By contrast, the maintenance proceedings were only commenced by the respondent in India in November 2017 and while an application for interim relief has been considered, those proceedings are still in the early stages of case management. As concerns the Indian proceedings, I have noted at [71] and [75] above the matters which do not appear to have been disclosed by the respondent to those courts at the time that those proceedings were instituted. I have also noted the issues that were raised by the applicant once he was given notice of the proceedings.
The applicant deposed that he has retained lawyers in India to represent him in the subject proceedings and that he is reliant upon an uncle to meet the legal expenses associated with those claims. He deposed that he was unable to afford the legal expenses associated with those claims. The applicant is presently living with his brother Mr G and his family for which he pays board. The applicant also says that his legal expenses for the Australian litigation are being funded by Mr G.
As in Henry v Henry, the parties did not (and I do not) explore whether an order made in this proceeding would be recognised in India. To the extent that the respondent or her parents might ultimately secure a money judgment in the proceedings for recovery of an alleged dowry, it would seem that any such judgment may be capable of enforcement in Australia: see s 5, Foreign Judgments Act 1991 (Cth); cf Hong & Cao [2018] FamCA 40, [55]; Gilmour & Gilmour (1993) FLC 93-353, pp. 79,732-738.
The applicant has regularly invoked the jurisdiction of this Court and, unless the proceeding be stayed, it is obliged to exercise the jurisdiction so invoked. Insofar as the applicant might have had some juridical advantage in pursuing the application in this Court, there was no submission by either party that identified this as a relevant consideration. As Fogarty J observed in Gilmour & Gilmour (1993) FLC 93-353 at p. 79,740, “The Australian Act is an example of the general discretionary approach to the distribution of property upon separation or divorce.”
To adapt the analysis of Gleeson CJ in Lenah Game Meats at [11], I was satisfied that there is a sufficient colour of right to the final relief sought by the applicant, in aid of which the anti-suit injunction is sought. In April 2017, his application had been set in motion. I was also satisfied that the balance of convenience warranted the grant of relief. For the reasons given at [118] above, it is highly undesirable that there be proceedings in different forums deciding the same substantive applications. To adapt the reasoning in Hong & Cao [2018] FamCA 40, [126]-[127], for the reasons above, there is utility in an order preventing the respondent from pursuing her claims for maintenance and arrears of maintenance in India. The utility lies in preventing the creation of problems which are likely to arise if orders are made in different countries affecting the same subject matter; namely, maintenance, arrears of maintenance and ancillary relief. The initiation and pursuit of those proceedings have a tendency to interfere with the process of this Court constituted by the applicant’s claim for adjustment of property interests, and the respondent’s claim in this Court respecting those interests together with her claim for the payment of spousal maintenance. It follows that I consider an anti-suit injunction should be granted.
Relief
The orders made granting relief in the proceeding are framed so as to make clear that the respondent may not continue the proceedings in India insofar as they press claims for the payment of maintenance or arrears of maintenance or for ancillary relief associated with those claims. The orders provide separately that the respondent may not commence like claims in any new proceeding. Each of those injunctions operates pending further order. The orders as framed by the applicant reflect the relief that was granted in Costigan & Costigan [2016] FamCA 879. The applicant was content with my indication that it seemed preferable to grant relief by reference to the specific proceedings that have been instituted in India.
The orders also make plain that the injunctions do not preclude the respondent from otherwise prosecuting the application made with her parents respecting the dowry (in respect of which this Court has no jurisdiction). Nor do they operate to prevent enforcement of any orders. Ancillary orders are made which require the parties to apply for a stay of the Indian proceedings insofar as they relate to maintenance and to inform the Court of (omitted) India of the making of those orders.
Further orders have been made in aid of the injunctions to restrain the respondent from leaving the Commonwealth for a limited period. This order was made in light of the respondent’s conduct as detailed above, including in particular her unilateral transfer of substantial monies out of Australia, her institution of the proceedings in India and her non-disclosure in those proceedings of the fact of this proceeding. Those orders were supported by reference to authority: see In the marriage of G and MT Taylor (1988) FLC 91-943; Rahman & Rahman [2013] FamCAFC 162; Xuen & Chao (Injunction in aid of enforcement) [2014] FamCA 798; but cf Oakley & Millar [2018] FamCAFC 42.
As concerns the restraint on the respondent from leaving Australia, on one view of the evidence she has willingly left her employ in (omitted) 2017 and has transferred substantial sums from Australia to India. She has used those funds to purchase an apartment in India. Approximately one half of the monies she has so transferred have been paid to her parents. I am not satisfied that the respondent’s financial position is dire or that she is unable to support herself at this time. She has the support of friends in Australia. The restraint from leaving the Commonwealth operates until further order. The respondent may immediately comply with the orders as concern notification to the Court of (omitted) India of the making of these orders and once she has made the requisite applications in that proceeding, the restraint may be lifted. The matter is relisted for mention in light of the fact that the matter also returns to the Court of (omitted) India in late April 2018.
The present case is also analogous to Underwood & Underwood (2017) FLC 93-815 at [25] where the Full Court recognised that the wife had made no submissions respecting the particular orders to be made. Nor had submissions been made as to the basis on which she would suffer any particular prejudice by the making of such orders. The orders had been made to preserve the subject matter of the proceeding until a hearing could take place.
I have recognised that the Court of (omitted) India has granted an interim injunction so as to prevent the applicant from alienating his interest in the (Indian property) land until further order. It is an interim injunction. Suffice to say that the applicant has given this Court an undertaking not to alienate the (Indian property) land pending further order in this proceeding. The applicant’s counsel confirmed that the applicant gave that undertaking, it having been explained clearly by his counsel that a breach of that undertaking may be a contempt and enforceable against him personally. I accepted that undertaking.
In the application before me, counsel for the applicant urged that by her amended response the respondent had pressed for an order for the payment of a sum representing one half of the equity in the Property A property and the (Indian property) respectively. This amended response was filed on 5 April 2018, a matter of days before the final hearing. It should be taken to represent the relief which will be sought by the respondent at the final hearing.
In Galloway & Midden (No 2) [2014] FamCAFC 60 at [19]-[20], the Full Court considered the position of trust property held outside of Australia and accepted that “an Australian court applied Australian law in exercising in personam jurisdiction to adjust the property rights of parties in property located overseas.” At the same time, the Full Court observed that an Australian court will avoid making an order in relation to assets in a foreign country that might operate in direct conflict with the laws of that country. This is not the occasion to consider the scope of the principles allowing in personam orders of this kind.
For present purposes, I note that by operation of the Moçambique rule, an Australian court will not exercise jurisdiction over title to or possession of land that is beyond its jurisdiction. The rule was stated in these terms by Finkelstein J in TS Production LLC v Drew Pictures Pty Ltd [2008] FCAFC 194 at [14] as follows:
The common law in England and the common law in Australia have adopted a principle based on the comity of nations that, subject to certain limited exceptions, the court has no jurisdiction to entertain an action to determine title to, or the right to possession of, immovable property situated outside the jurisdiction. This is the so called Moçambique rule, after British South Africa Company v The Companhia De Moçambique [1893] AC 602. See also Hesperides Hotels Ltd v Muftizade [1979] AC 508.
This principle is applied in property settlement proceedings: Gilmour & Gilmour (1993) FLC 93-353, pp. 79,729 (Fogarty J). This is not the occasion to explore the metes and bounds of the jurisdiction to make orders of the kind sought by the respondent.
Conclusion
As the final hearing listed for 9-10 April 2018 has had to be aborted, further orders have been made regulating a final hearing on the earliest available date. The final hearing will proceed on 3 September 2018. The parties will be required to prepare their respective cases without further delay. I have identified some of the issues that seem to emerge on the affidavits to date.
Based on the available evidence, the parties’ asset pool is modest.
As I observed in the present application, it appears that more effort is being dedicated to the implementation of tactical decisions as to how much litigation can be pursued than to focussing on how a just and equitable resolution of the present claims might be achieved.
I commend each of the counsel for their assistance in this application.
I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 20 April 2018
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