Serrafis v Hong - [2014] NSWDC 121

District Court

New South Wales

Medium Neutral Citation: Serrafis v Hong [2014] NSWDC 121
Hearing dates: 18/07/2014
Decision date: 01 August 2014
Before: Curtis J
Decision:
Catchwords: District Court - Notice of Motion seeking jurisdictional issue be tried separately and that the Statement of Claim be struck out - Orders in Family Court res judicata - Issue Estoppel
Legislation Cited: Limitation Act 1969
Family Law Act 1975
Uniform Civil Procedure Rules 2005
Cases Cited: In the marriage of Kennon (1997) 22 Fam LR 1
Blair v Curran [1939] 62 CLR 464
Macquarie Bank Ltd v National Mutual life Association of Australia (1990) 40 NSWLR 543
Personal Representitives of Tang Man Sit v Capacious Investments [1996] AC 514
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR
Do Carmo v Ford Excavations Pty Ltd [1983-1984] 154 CLR 234
Drayton Coal Pty Ltd v Drain [1995] NSWCA 131
Dedousis v Water Board [1994] 181 CLR 171
Baker-Morrison V New South Wales (2009) NSWLR 454; [2009] NSWCA 35
Texts Cited: Res Judicata, 4th Edition 2009 Spencer Bower and Handley
Category: Procedural and other rulings
Parties: Retina Serrafis (Plaintiff)
Lindsay Hong (Defendant)
Representation: D W Elliott appeared for the Plaintiff
R Macaulay apperaed for the Defendant
City Lawyers and Consultants (Plaintiff)
Pryor Tzannes & Wallis (Defendant)

File Number(s): 2013/237176

RULING

The Claim

By statement of claim filed 5 August 2013 the plaintiff claimed damages in respect of personal injuries caused by physical assaults and verbal intimidation and abuse from the defendant, her former husband, between 1998 and 26 June 2009.

The Defence

In answer to the claim the defendant denied the allegations of fact, and also pleaded that:

(a) The subject matter of the statement of claim is res judicata, by virtue of final orders in the Family Court of Australia made on 31 January 2012.

(b) In the alternative, the matters relied upon in the statement of claim were so relevant to the subject matter of the Family Court proceedings that it was unreasonable of the plaintiff not to have raised those matters in that court, and the plaintiff is accordingly estopped from proceeding (Anshun Estoppel).

The Present Proceedings

By Notice of Motion filed 22 April 2014 the defendant sought orders that jurisdictional issues raised by these defences be separately tried pursuant to UCPR Pt 28 r 2, and that the statement of claim be struck out.

On 18 July 2014 I granted the order for separate determination, and, the parties having prepared their arguments and filed written submissions, heard the strike out application forthwith.

The Plaintiff's Contentions

In response to the plea of res judicata Mr Elliott for the plaintiff submits that the Family Court proceedings did not raise for determination the same issues between the parties as are presently pleaded.

In response to the allegation that the action is statute barred Mr Elliott submits that either:

(a) Before commencing the action Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Serrafis v Hong

Details

AGLC: Serrafis v Hong [2014] NSWDC 121
Case: [2014] NSWDC 121
Decision Date: 01 August 2014

CaseChat Overview and Summary

The case before the District Court involved a Notice of Motion filed by the defendant, Hong, in relation to a proceeding brought by the plaintiff, Serrafis. The motion sought to have a jurisdictional issue tried separately and to have the Statement of Claim struck out. The dispute originated from a previous decision made in the Family Court, which the defendant argued was res judicata, and from which the plaintiff was estopped from relitigating certain issues. The legal issues before the court were whether the Family Court decision could be relied upon to determine the jurisdiction of the District Court and whether the plaintiff was estopped from bringing the current claim.

The court found that the Family Court decision was not res judicata in the sense that it precluded the District Court from exercising its jurisdiction. It noted that the Family Court's jurisdiction was limited to family law matters, whereas the District Court had jurisdiction over the subject matter of the current proceeding. Furthermore, the court held that issue estoppel did not apply as the issues in the Family Court were not identical to those in the District Court. The court held that the Family Court decision did not conclusively determine the jurisdictional issue and that the plaintiff was not estopped from bringing the current claim.

The District Court declined to strike out the Statement of Claim and dismissed the defendant's motion to try the jurisdictional issue separately. The court held that the jurisdictional issue could be determined alongside the other issues in the proceeding. It found that the plaintiff's claims were not precluded by the previous Family Court decision and that the defendant's argument based on issue estoppel was not well-founded. The court's decision allowed the proceeding to continue in the District Court, where the merits of the plaintiff's claims could be determined.

The final orders of the court included the dismissal of the defendant's Notice of Motion and the refusal to strike out the Statement of Claim. The court also ordered that the jurisdictional issue be tried alongside the other issues in the proceeding. The decision allowed the plaintiff to pursue their claims in the District Court, without being barred by the previous Family Court decision or by issue estoppel.

Orders