SANGINITI v Madaffari
[1999] WASC 158
SANGINITI -v- MADAFFARI & ANOR [1999] WASC 158
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 158 | |
| Case No: | CIV:1183/1999 | 24 AUGUST 1999 | |
| Coram: | MURRAY J | 24/08/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| PDF Version |
| Parties: | MARIA TERESA SANGINITI BRUNO MADAFFARI MARIA MADAFFARI |
Catchwords: | Jurisdiction Cross-vesting Application to transfer to State Family Court an action in Supreme Court Claim by wife against husband's parents for declaration of trust over property owned by them Turns on own facts |
Legislation: | Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 5(4) |
Case References: | Bond Brewing Holdings Ltd v Crawford (1989) 1 WAR 516 Chapman v Jensen (1990) 100 FLR 66 Dawson v Baker (1994) 120 ACTR 11 Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1990) 1 WAR 531 Platz v Lambert (1994) 12 WAR 319 Kenda v Johnson (1993) FLC 92-331 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
BRUNO MADAFFARI
First Defendant
MARIA MADAFFARI
Second Defendant
Catchwords:
Jurisdiction - Cross-vesting - Application to transfer to State Family Court an action in Supreme Court - Claim by wife against husband's parents for declaration of trust over property owned by them - Turns on own facts
Legislation:
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 5(4)
Result:
Application refused
(Page 2)
Representation:
Counsel:
Plaintiff : Mr A A Jenshel
First Defendant : Mr B D Meertens
Second Defendant : Mr B D Meertens
Solicitors:
Plaintiff : Elizabeth Wiese & Associates
First Defendant : Halperin Fleming Meertens
Second Defendant : Halperin Fleming Meertens
Case(s) referred to in judgment(s):
Bond Brewing Holdings Ltd v Crawford (1989) 1 WAR 516
Chapman v Jensen (1990) 100 FLR 66
Dawson v Baker (1994) 120 ACTR 11
Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1990) 1 WAR 531
Platz v Lambert (1994) 12 WAR 319
Case(s) also cited:
Kenda v Johnson (1993) FLC 92-331
(Page 3)
1 MURRAY J : I commence with the observation that this is a matter of a kind which very often I find presents its own difficulty because the arguments on both sides are finely balanced. The application is made for an order cross-vesting the particular litigation in this Court to the Family Court of WA.
2 The application says that it is proceeding under s 5(1), but in truth it is right, I think, as Mr Jenshel says, that it proceeds under s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act (1987) (WA), and it seems to me that for present purposes the relevant portion of that provision is that which requires the order transferring the proceedings to be made by this Court, where it appears to this Court that it is more appropriate that the relevant proceeding be determined by the other court, in this case the State Family Court, or it is otherwise in the interests of justice that the relevant proceeding be determined by that other court.
3 In expressing the matter in that way, I think it is clear that the section places an onus upon the applicant to satisfy this Court that the interests of justice are of such a character that the order is to be made. I have referred to some rather different factual circumstances in reported decisions of this Court, but the general propositions emerging from those cases assist, I think, with the approach which is to be taken generally to applications of this kind. The authorities to which I refer are the decision of the Chief Justice in Platz v Lambert (1994) 12 WAR 319, the decision of Ipp J in Bond Brewing Holdings Ltd v Crawford (1989) 1 WAR 516, and the decision of Ipp J in Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1990) 1 WAR 531.
4 As I say, they were in rather different factual circumstances, a rather different kind of application in each case because I think, if my memory serves me correctly, in each case they were matters which were initiated here, in either the Supreme Court or the District Court, which it was proposed to have dealt with in the Supreme Court of another State, but the interests of justice test applied to the resolution of those applications, as it does in this case, and in Platz v Lambertat 323, the Chief Justice said:
"While intended to confer upon the courts a wide discretion in order to achieve the broad purposes of the legislation, the words 'the interests of justice' are not to be interpreted as in no way subject to any limitations such as would be the case if, for example, the principle of forum non conveniens were to be taken into account."
(Page 4)
5 So there is that degree of guidance emerging from that case, and from his Honour's agreement with the view earlier expressed by Ipp J, that prima facie, where proceedings are regularly instituted in a court having jurisdiction to deal with them, they should remain there to be dealt with unless the applicant for the cross-vesting order discharges the onus to persuade the Court affirmatively that the interests of justice require the making of the order. That is to say no more than to express a view consistent with that which was expressed by Nicholson CJ of the Family Court in Chapman v Jensen(1990) 100 FLR 66, 74 where his Honour said:
"Where proceedings have been instituted by a litigant in a court having jurisdiction, anyone seeking to displace that jurisdiction at least carries the forensic onus of persuading the court that it ought to order a transfer."
6 It is perfectly clear, it seems to me, and the judgments of the members of the Full Court of the Family Court in that case demonstrate the point, that the term "the interests of justice" is not one which is to be narrowly defined, but a broad approach is preferred to enable the Court to have regard to any matters which appear to be generally relevant, including matters of convenience to the parties, and by that I think is clearly meant both parties, not simply the applicant, matters of costs, matters of expedition, and that sort of consideration.
7 I should also refer, I think, to the decision of the Full Court of the Australian Capital Territory in Dawson v Baker(1994) 120 ACTR 11. There his Honour Miles CJ at 14 of the report reminds the reader that the decision whether a transfer is or is not in the interests of justice is in the nature of a value judgment. Once the value judgment is made, there is no discretion as to whether or not an order should be made. The Court must order the transfer or refuse to order the transfer in accordance with the decision whether to do so is in the interests of justice.
8 I find appealing his Honour's view expressed there, that what is required is not an attempt to make a judgment on the basis of high principle but, as his Honour put it, "a nuts and bolts management decision" as to which court in the pursuit of the interests of justice is the more appropriate to hear and determine the substantive dispute. Of course his Honour was there speaking of the consideration which in this case emerges by reference to s 5(4)(b) of the Act.
(Page 5)
9 In that case also, at 25 of the report, Higgins J summarised a number of matters which might be of some significance, including such matters as the application of substantive law, whether there was any proper forensic advantage to be secured either way, having regard to the terms of the relevant procedural law, so that a party might gain or lose in that way by a transfer of the proceedings, the reason for the original choice of forum, any connections with the forum, (None of those matters seem to me in this case to be of particular moment) questions of the balance of convenience to parties and witnesses, and matters of that kind, comparative costs, questions of delay. Those are the sort of considerations which the court will have regard to, although I should immediately say that so far as the latter consideration is concerned, the question of delay and the expedition which might be applied to the disposition of the proceedings, in this case I see nothing in the affidavit material to suggest that there would be any advantage or disadvantage to either leaving these proceedings here to be determined, or to have them determined as part of the broader proceedings to be conducted in the Family Court.
10 I should mention briefly what I understand to be the relevant facts concerning the proceedings and I do so only in this way: the plaintiff, the applicant before me, is married to a Mr Domenico Madaffari who is the son of the defendants. There are two children of that marriage. There has been a separation. She has the children living with her. It is perfectly clear that she has very little in the way of financial capacity, but child support is paid by the husband.
11 There are in the defended proceedings in the Family Court issues as between those two people in relation to the residence or custody of the children, who shall have primary parental responsibility with respect to them, what contact with the children the other party may have, and matters of property settlement. All are in contest between the parties, according to the papers that have been presented to me, the application for final orders made by the plaintiff in the Family Court and the response to that application filed by her husband.
12 There are aspects of contest in the Family Court proceedings which are much broader than the issues raised in these proceedings which seem to me to pose in a relatively simply form the question whether there should be a trust declared in relation to a portion of a property owned by the defendants at 6 Shallcross Street, Spearwood. The declaration of trust being sought is said to arise out of an undertaking or promise to convey to both the plaintiff and her husband part of the land in question upon which a matrimonial home was built, and that was a promise said to have been
(Page 6)
- conveyed by the defendants to their son in the presence of the plaintiff's parents and to have involved the subdivision of the land to create a lot upon which this matrimonial home would be built and to gift that lot to them jointly.
13 I mention that because it is apparent from the matters before me that the overwhelming value of what is asserted to be the matrimonial property in the Family Court proceedings brought by the plaintiff is to be attributed to the interest claimed jointly on behalf of the plaintiff and her husband in this particular property, so it is perfectly apparent and indeed interlocutory orders made in the Family Court confirm, that there is an incapacity to resolve at least those property issues as between husband and wife until the plaintiff's claim against the defendants is finally determined.
14 As I say, it seems to me that both courts are perfectly capable of dealing with the claim by the plaintiff against the defendants. Both courts would apply the same law, the same consideration of principle. Both courts would have the capacity to deal with the issues of fact which arise, because the case is one which very much depends upon matters of fact. The defences of the defendants each deny that a promise of the kind pleaded by the plaintiff was ever made, but assert a quite different arrangement involving their son solely and his capacity to take an interest in the land, so the courts would be both capable of dealing with those matters.
15 The courts would be both capable; in the case of the Family Court if a cross-vesting order was made, of providing the appropriate orders which would, if the plaintiff's claim was successful, confirm the declaration of trust and convert that by consequential orders directly into an interest in the land in the name of her and her husband. The Family Court would then have its quite different and separate consideration to go on with in relation to that property interest, if such was declared and ordered, which would require in the ordinary way decisions as between husband and wife to settle property matters between them by making appropriate orders. They would be separate and additional matters which would be involved in those proceedings.
16 It seems to me that there is a capacity in both courts to resolve the issue raised in the present litigation with as much expedition, one as to the other. How quickly such matters may be resolved would seem to me to depend particularly upon the parties' capacity to dispose of any interlocutory processes thought to be necessary and to get the matter on for trial. I would have thought that the factual issues raised on the
(Page 7)
- pleadings in this case show that the trial would in either event and in either court be of a limited kind of a short duration, perhaps a matter of 2 days or so at the most, and for my part I would see no difference in the likely result as to costs which might occur in that regard.
17 I have read the affidavit which suggests a costs benefit which would flow to the plaintiff from an order transferring the proceedings. The affidavit is that of Mr Kelleher, the solicitor having the conduct of matters for the plaintiff. It seems to me that whilst there is some persuasive force in that from her point of view, there is another side to that to which I will refer shortly.
18 The plaintiff particularly relies upon matters of that kind and I think I may summarise my conclusion on these aspects by saying that the only significant change which I can see from the making of an order transferring the litigation is that the defendants would then become involved in wider proceedings in the Family Court raising other and different issues as between husband and wife than any which would directly interest them and wider than those issues which arise in the present litigation.
19 That may have, in my view, a potential to increase the cost of their involvement in the process of litigation which the plaintiff has initiated in this Court. No doubt it is the case that the Family Court may be persuaded to minimise that involvement and delay which might arise out of the enmeshing of this litigation in the wider issues arising as between husband and wife in the proceedings in the Family Court but all of that is very speculative.
20 So far as I can see, although there may be some positive benefit for the plaintiff in relation to the making of an order of transfer by bringing the various proceedings against members of the Madaffari family together in the way that I have described, there is also a potential for the balance of convenience not to favour the defendants if that process is taken.
21 In the final analysis I find myself unpersuaded that the interests of justice are such as to make it more appropriate that the relevant proceedings be determined in the Family Court, or that it is otherwise in the interests of justice that they be so determined. I am therefore obliged to refuse the application to transfer the relevant proceeding.
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