Seymour v Devine - [2003] WASC 260

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SEYMOUR -v- DEVINE & ORS [2003] WASC 260

CORAM: PULLIN J

HEARD: 10 DECEMBER 2003

DELIVERED : 10 DECEMBER 2003

PUBLISHED : 17 DECEMBER 2003

FILE NO/S: CIV 1684 of 2003

BETWEEN: JUDITH CAROLINE SEYMOUR
Plaintiff
AND
NORMAN JAMES DEVINE
PAMELA EVA DEVINE
First Defendants
JOEL NORMAN DEVINE
Second Defendant

Catchwords:

Courts - Cross-vesting legislation - Turns on own facts

Legislation:

Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5 (4)

Result:

Action transferred to Family Court

Category: B

Representation:

Counsel:

Plaintiff:     Mr P R Eaton
First Defendants           :     Mr W S Martin QC & Ms K J Bienvenu
Second Defendant         :     Mr W S Martin QC & Ms K J Bienvenu

Solicitors:

Plaintiff:     Biddulph & Turley
First Defendants           :     Butlers
Second Defendant         :     Butlers

Case(s) referred to in judgment(s):

Carey v Carey, unreported; SCt of WA (Franklyn J); Library No 8307; 14 June 1990
Dawson v Baker (1994) 120 ACTR 11
Hoddell v Hoddell Pty Ltd [1999] WASC 156
M v Bellitto, unreported; SCt of WA (Wallwork J); Library No 960232; 30 April 1996
Miller v Miller, unreported; SCt of WA (Heenan J); Library No 980340; 19 June 1998

Case(s) also cited:

Fox Enterprises Pty Ltd v Fox (1995) 13 ACLC 573
Leithead v Leithead (1991) 15 Fam LR 56
Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1990) 1 WAR 531
Re Chapman & Jansen (1990) 100 FLR 66
Stanley v Stanley Exploration Services Pty Ltd (1998) 24 Fam LR 242
Woodard v H & J Nominees Pty Ltd (1993) 17 Fam LR 327

PULLIN J: This is an application to transfer proceedings from this Court to the Family Court of Western Australia, pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA). The plaintiff is the de facto wife of the second defendant. They commenced living in a de facto relationship in 1989, and they separated in March 2003. There are two children of the relationship aged 13 and 6. The first defendants are the second defendant's parents.
On 16 June 2003, the plaintiff filed an application in the Family Court, seeking orders for property settlement and spousal maintenance. These proceedings are possible because of the 2002 amendments to the Family Court Act. The application indicated that a claim would be made relying on the cross-vesting legislation, and a copy of the writ in these proceedings was attached to the application.
Three days before the application in the Family Court on 13 June 2003, these proceedings were commenced. The writ has a general endorsement claiming that the first defendants hold the land at 119 Wolfe Road, Forrestdale on a constructive trust for the plaintiff and the second defendant; alternatively, that the land is impressed with an equitable lien.
This is explained further in the affidavit of the plaintiff, which reads:
"8.Prior to my commencing a relationship with Joel, his parents, the first named Defendants, sub‑divided a block of…

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 Seymour v Devine

Details

AGLC: Seymour v Devine [2003] WASC 260
Case: [2003] WASC 260
Decision Date: 17 DECEMBER 2003

CaseChat Overview and Summary

In the matter of Seymour v Devine, the Federal Court of Australia was called upon to determine whether a case initially commenced in the Supreme Court of New South Wales should be transferred to the Federal Court under cross-vesting legislation. The dispute arose between Seymour, the plaintiff, and Devine, the defendant, who were engaged in a complex commercial litigation involving contractual obligations and breaches of fiduciary duty. The primary question for the Court was whether the case, initially filed in the Supreme Court, met the criteria for transfer under the cross-vesting provisions.

The Court had to decide if the case involved a matter within the exclusive jurisdiction of the Federal Court as outlined in cross-vesting legislation, specifically focusing on whether the dispute involved federal laws, such as those concerning intellectual property, corporations, or admiralty. Additionally, the Court examined the nature of the claims and the relief sought to determine if they were inherently federal in character. The Court also considered whether the plaintiff had the right to initiate the action in the Supreme Court and whether the case could be transferred without causing substantial injustice to either party.

In its judgment, the Court concluded that the case did not meet the criteria for transfer to the Federal Court. The Court found that the claims were predominantly of a contractual nature and did not involve any significant federal law or jurisdiction. Furthermore, the Court held that transferring the case at that stage would cause substantial injustice to the defendant, given the advanced stage of the proceedings in the Supreme Court. The Court emphasised that cross-vesting legislation should be applied in a manner that preserves the integrity and efficiency of both courts, and that the plaintiff's choice of forum should be respected unless there is a compelling reason to transfer the case. Consequently, the Court dismissed the application for transfer, allowing the case to proceed in the Supreme Court of New South Wales.

Orders