SINGH & SINGH
[2010] FMCAfam 949
•17 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH & SINGH | [2010] FMCAfam 949 |
| FAMILY LAW – Indian dowry – property proceedings in Australia – jurisdiction of the court (“matrimonial cause”) – risk [genuine or theoretical] of prosecution in India – permanent stay of proceedings – onus of proof – anti-suit injunction – ‘clearly inappropriate forum’ – estoppel based on conduct of party – summary dismissal application. |
| Family Law Act1975, Part VII, Part VIIIAA, ss.4 (ca), (e), (f), 39(1A), 79, (4), (e), Part VIIIAA 114(1) & (3) Federal Court of Australia Act 1976, s.21(1) Federal Magistrates Act1999, ss.16, 17A Matrimonial Causes Act1959 (Cth) Dowry Prohibition Act 1961(India) |
| Ascot Investments v Harper (1981) 148 CLR 337 M. Davies, A.S. Bell, P.L.G. Brereton, Nygh’s Conflict of Laws In Australia (Eighth Edition) (Sydney: Lexis Nexis Butterworths, 2010) |
| Applicant: | MR SINGH |
| Respondent: | MS SINGH |
| File Number: | CAC 1604 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 19 November 2009 |
| Date of Last Submission: | 20 April 2010 |
| Delivered at: | Canberra |
| Delivered on: | 17 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Nash SC |
| Solicitors for the Applicant: | Farrar Gesini & Dunn |
| Solicitor-Advocate for the Respondent: | Ms D Simpson |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
ORDERS
Pursuant to section 114 of the Family Law Act 1975 the Wife be restrained from taking any action or causing or allowing or assisting any other person to do so, under the Dowry Prohibition Act 1961 (India) and/or Indian Penal Code, alleging payment of dowry or demand of payment of dowry as a precondition for marriage between the parties.
Within 21 days of the date of these Orders, the parties file and serve any written submissions in relation to costs.
AND IT IS NOTED THAT:
(A) On the evidence presented to the Court, the Respondent has not established that a dowry was either requested or paid, as alleged.
IT IS NOTED that publication of this judgment under the pseudonym Singh & Singh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT canberra |
CAC 1604 of 2008
| MR SINGH |
Applicant
And
| MS SINGH |
Respondent
REASONS FOR JUDGMENT
Introduction
Factually, at the heart of this case is an Indian dowry. A range of questions or issues relate to it, for example, whether it existed, when and how it came to be, what it comprised and whether, if it exists (or existed), the demand/request for it breached the Indian Dowry Prohibition Act 1961 (the DP Act”).
Legally, at the heart of this case is the Applicant Husband’s risk (which seems not denied by the Respondent Wife) of prosecution, in India, for the [alleged] contravention of the DP Act and what, if any, remedy is available to him in this Court, against his former wife, to alleviate or to protect him against that risk.
In the light of the factual and legal issues to which I have briefly, albeit generally, referred, these proceedings may be seen to concern the operation of s.114 of the Family Law Act 1975 (“the Act”) in relation to the alleged Indian dowry and possible criminal proceedings in India in relation to it. The facts described below, and the relief sought, raise issues concerning the application of well-established principles in relation to –
·(as sought by the Wife, among other things), a permanent stay of the proceedings on the ground that they are being conducted in this Court, which (it is said) is a “clearly inappropriate forum”, as opposed to the criminal courts in India;[1]
·(as sought by the Husband) an anti-suit injunction against the wife to prevent any proceedings being brought in India, an anti-suit injunction.[2]
[1] See, Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at pp.554, 557 & 565 (Mason CJ, Deane, Dawson, Gaudron JJ); Henry v Henry (1996) 185 CLR 571; Kemeny v Kemeny (1998) 145 FLR 6; Dobson v Van Londen (2005) 33 Fam LR 525; Puttick v Tenon (2008) 238 CLR 265 at pp.276-278 [27] – [30] (French CJ, Gummow, Hayne & Kiefel JJ) and at pp.280-281 [38] & [43] (Heydon & Crennan JJ); Pagliotti v Hartner (2009) 41 Fam LR 41; Garsec Pty Ltd v His Majesty the Sultan of Brunei (2008) 250 ALR 682; Murakami v Wiryadi (2010) 268 ALR 377. Generally, see also M. Davies, A.S. Bell, P.L.G. Brereton, Nygh’s Conflict of Laws In Australia (Eighth Edition) (Sydney: Lexis Nexis Butterworths, 2010) Chapter 8 “Restraint of Local Proceedings: Clearly Inappropriate Forum,” pp.163-186.
[2] See, CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 571; Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at pp.242-244 [93] – [95] (Gummow & Hayne JJ); Du Bray v McIlwraith (2009) 259 ALR 561; TS Production LLC v Drew Pictures Pty Ltd (2009) 250 ALR 97. Generally, see also R.P. Meagher, J.D. Heydon, M.J. Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies, Fourth Edition (Sydney: Butterworths – Lexis Nexis, 2002) at pp.735-737 [21-165]; M. Davies, A.S. Bell, P.L.G. Brereton, Nygh’s Conflict of Laws In Australia (Eighth Edition) (Sydney: Lexis Nexis Butterworths, 2010) Chapter 9 “Restraint of Foreign Proceedings: Anti-Suit Injunctions,” pp.187-202; and A.S. Bell & J. Gleeson, “The Anti-Suit Injunction,” (1997) 71 Australian Law Journal 955-975.
The Respondent also challenges the jurisdiction of this Court to deal with the matter, and says that the application should be summarily dismissed pursuant to s.17A of the Federal Magistrates Act1999 (Cth).
As noted in detail later, the basis for the “no jurisdiction” argument is predicated upon certain findings being made in relation to whether the proceedings can properly be said to come within ss.4, 39(1A) (which sections relevantly deal with “matrimonial cause”), and 114 of the Act.
In Yunghanns v Yunghanns,[3] relying on two High Court decisions of DMW v CGW and R v Ross-Jones; Ex parte Green,[4] the Full Court confirmed that (a) a court of limited jurisdiction (such as this Court) must first determine “any essential facts upon which the existence of its jurisdiction to make the orders sought ultimately depends (“the jurisdictional facts”).” These “jurisdictional facts” are to be distinguished from “... the facts the existence of which it is necessary to establish in order to entitle the applicant (subject to discretionary considerations) to an exercise in his or her favour of the jurisdiction which the court has (“the adjudicational facts”).”[5]
[3] (1999) 24 Fam LR 400 (Lindenmayer, Holden & Mullane JJ). In the early part of written submissions on behalf of the Respondent, the Court was urged to consider and use a very brief statement from the joint judgment of Ellis & Finn JJ in Deputy Commissioner of Taxation v Kliman (2002) 29 Fam LR 301, where their Honours referred briefly, at [22], to “... certain of the powers conferred on the Family Court to grant injunctive orders (being the powers contained in s.114(1) and (3)) are conferred only in the context of jurisdiction being exercised in particular types of proceedings.” This shortly described point may, respectfully, be described as a summary of the detailed discussion in Yunghanns at [79] – [110].
[4] (1982) 151 CLR 491 and (1984) 156 CLR 185 respectively.
[5] (1999) 24 Fam LR at pp.432 & 433 [109 (3) & (5)].
The Court went on to observe: “Once a respondent challenges the court’s jurisdiction to make the orders sought, the court, before considering the adjudicational facts, must find the existence of the jurisdictional facts, on the balance of probabilities.”[6]
[6] (1999) 24 Fam LR at p. 433 [109 (6)].
One further comment from the Full Court in Yunghanns is apposite to record, namely: “... whilst it is relatively simple, in theory, to describe the difference between jurisdictional and adjudicational facts, it is often difficult in practice ... to identify into which category a particular fact or group of fact falls.”[7]
[7] (1999) 24 Fam LR at p. 433 [110].
In what follows I seek to follow the directions from the Full Court and distinguish between and deal with the two categories of fact – firstly, “jurisdictional”; secondly, “adjudicational.”. That said, it will become evident that there is a necessary overlap if not inter-mingling of some of the facts, and that some adjudicational facts are necessary to form a basis for determining certain jurisdictional facts.
One further procedural and jurisprudential observation is necessary in the light of the relief sought by each party – stay (inappropriate forum) versus injunction. In CSR Ltd v Cigna Insurance Australia Ltd,[8] the High Court confirmed that the appropriate course is for a court to deal firstly with the ‘inappropriate forum’ issue before, secondly, dealing with any issue concerning an anti-suit injunction. The Court (Dawson, Toohey, Gaudron, McHugh, Gummow & Kirby JJ) said:[9]
Although stay orders and anti-suit injunctions are not governed by the same principles, it will later become apparent that, in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings. And it will also become apparent that, in other cases, the power to grant anti-suit injunctions should not be exercised without the court concerned first considering whether its own proceedings should be stayed.
... If the Australian court decides that it is clearly an inappropriate forum, that will be the end of its involvement and the occasion for considering whether to grant an anti-suit injunction or other relief will not arise. If the Australian court reaches the opposite conclusion, namely, that it is not a clearly inappropriate forum, then it must go on to determine whether to require the applicant to seek a stay or dismissal of the foreign proceedings or to grant an anti-suit injunction.
[8] (1997) 189 CLR 571.
[9] (1997) 189 CLR at pp.390 & 397-398.
In the light of the authorities noted, I proceed as follows: (a) Factual background to the dispute; (b) Issues for Determination; (c) Procedural & Evidentiary Matters; (d) Submissions; (e) Jurisdiction; (f) Forum non conveniens; (g) Anti-Suit Injunction; (h) Relief.
A. Factual background to the dispute
Mr Singh, the Applicant husband in these proceedings, was married to the Respondent, Ms Singh, [in] 2002. The marriage was arranged by their respective parents. They were married according to Sikh rites in India.
Both parties are Australian citizens. The Applicant Husband completed the latter part of his secondary schooling in Australia, and all of his tertiary studies in [omitted] at [university within Australia omitted]. Having initially commenced employment at [omitted], since 2001 he has worked at [omitted] in Canberra.
The Respondent Wife is formally qualified as a [healthcare professional] in India, but it would seem not disputed that she failed to gain relevant accreditation to practise as a [omitted] in Australia. Pursuant to Recital K in the Financial Agreement entered into by the parties, dated 18th June 2009, which is annexed to the Consent Orders, dated 2nd July 2009, Ms Singh proposes to continue her [omitted] studies so as to be able to practise, which is her intention, full time in Australia. The Recital stated that Ms Singh expected to graduate from her studies at an unspecified time in 2010.
The parties are both aged 32 years. There is one child of the relationship ([X]), who was born in 2006. He lives with his Mother in Canberra and spends regular time with his Father.
Save for one issue, I have already noted that Consent Orders were made by this Court on 2nd July 2009. Those Orders, with the Financial Agreement annexed, dealt with parenting orders in relation to the child of the marriage, and the property of the parties.
Among other things, the Financial Agreement provides (Recital P) that: “The parties intend this agreement shall take effect from the date that Amandeep [Ms Singh] receives property settlement from Mr Singh [Mr Singh] (including Bonds worth approximately $12,570 and a motor vehicle) pursuant to the Consent Orders (or within 3 months of the date of this Agreement, whichever first occurs).”
The Consent Orders were sent to the Court under cover of a letter signed by both parties’ solicitors. The relevant paragraph of that letter, dated 18th June 2009, stated:
The parties are in agreement on all issues except for one in relation to an Order pursuant to section 114 of the Family Law Act restraining the parties taking certain steps that could result in the imprisonment of family members in relation to family law issues that are the subject of these proceedings.
The letter went on to request that the matter be listed for directions “to determine a timetable for each party to file documents regarding this discrete issue.” I note again, and stress, that the letter was signed by the legal representatives of both parties.[10]
[10] Nothing turns on the fact that, at the time the Consent Orders and Financial Agreement were signed, Ms Singh was represented by the Legal Aid Office of the ACT, but is now represented by different solicitors.
On the basis of the letter co-signed by the solicitors for the parties, which raises specifically for the Court’s determination the operation of s.114, one might ask whether any issue of estoppel arises. That issue is addressed later in these reasons.
B. Issues for determination
Stated summarily, the issues for determination arise out of the agreed understanding of the parties, which accords with the evidence before the Court, that the Indian Dowry Prohibition Act 1961 (“the DP Act”), as its name suggests, prohibits the requesting, giving, or receiving of a dowry in that country.
Expert evidence was provided to the Court by Mr S, an “Advocate, District Courts of Amritsar, Punjab, India”, who provided an affidavit that was filed on 24th July 2009. He confirmed that “... pursuant to Indian Law under Sections 3 and 4 of the Dowry Prohibition Act a case under Section 406 of Indian Penal Code and Section 498A of Indian Penal Code can be instituted in an Indian Court as a criminal case. If such a case is registered then Mr Singh [the Applicant] and members of his family including his father (who is currently residing in India) can be arrested.”
Mr S goes on to state:
... in an Indian Court testimony of a bride as well as parents of the bride regarding dowry at the time of marriage is complete evidence. The onus is then on the husband to prove his case when he has to lead evidence in defence. ...There is no time limit on applications under Dowry Prohibition Act and there is no time frame for a decision in the Indian Courts.
... if there are any proceedings in a foreign jurisdiction under a similar Dowry Act then the proceedings in the Indian Court regarding dowry can not be initiated.
... the Indian Courts can be restrained from dealing with property settled by foreign Courts if the litigation has been decided by a competent Court and the parties have Australian citizenship.
Mr S also stated that, having reviewed the application currently before this Court, he was of the view that if orders were made as sought by
Mr Singh, and a finding made that a dowry was not paid or demanded, “the Indian Courts would not initiate criminal proceedings against
Mr Singh or members of his family.”[11]
[11] In his affidavit filed on 24th July 2009, Mr Singh set out (a) [at pars.8-10; 16; 19-27; 40-52] his concerns in relation to the dowry issue and various attempts (he says) to have the Respondent address it, and (b) [at pars. 36-39 & Annexures A – E] various advices sought from Mr S in relation to the same issue. Annexure E to this affidavit is a copy of the Dowry Prohibition Act.
Mr V, also an advocate in the District Courts at Amritsar, confirmed (so it would seem) that he had been requested by Mr S to offer his opinion regarding the operation of the Dowry Prohibition Act. In rather more colourful terms, he confirmed the criminal consequences for breach of the DP Act, to which Mr S had also referred.[12]
[12] Document headed ‘Legal Opinion’ addressed to Rhonda Payget- Solicitor Canbra (sic) Australia, filed 17th November 2009.
Contrary to the position advanced by Mr Singh, the Respondent Wife contends that a dowry was paid by her family in India to the Applicant Husband, at the request/demand of him and or his family, contrary to the provisions of the DP Act. She resists the relief sought by her former Husband, and that his Application be summarily dismissed. In the alternative, she seeks that the proceedings, in effect, be permanently stayed, inter alia, on the basis that this Court is a clearly inappropriate forum (as opposed to the criminal courts in India), according to the principles set out in Voth v Manildra Flour Mills Pty Ltd.[13]
[13] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. See also the more recent High Court authority of Puttick v Tenon (2008) 238 CLR 265.
As set out in an Amended Minute of Orders Sought filed on
13th November 2009, leaving aside costs, Mr Singh seeks one substantive order in the following terms:
That pursuant to Section 114 of the Family Law Act the mother [Ms Singh] be restrained from taking any action or causing or allowing or assisting any other person to do so, under the Dowry Prohibition Act 1961 (India) and/or Indian Penal Code, alleging payment of dowry or demand of payment of dowry as a precondition for marriage between the parties.
Mr Singh also sought a “notation” in the following terms: “That the applicant seeks a finding by the Court that no dowry was paid, received, requested or demanded by the Applicant and his family.” Leaving aside the cumbrous wording, and questions as to the evidence upon which such a “finding” could be made (on which – more later), one might have expected that a declaration in some form would be a more appropriate way to proceed, rather than a notation.
C. Procedural and evidentiary matters
The matter proceeded by way of affidavit evidence only, and submissions – oral and written. This is also to confirm that there was no cross-examination of either of the parties, nor of any of the deponents of the multiple affidavits filed in relation to the issues at hand.[14]
[14] See Transcript (19th November 2009) p.3.
Unsurprisingly, by and large, the affidavits filed on behalf of each of the parties supported the contentions of the respective “litigious camps.” Thus, the many affidavits filed on behalf of Mr Singh confirmed that no dowry was ever sought or requested, while those filed on behalf of Ms Singh confirmed exactly the opposite. Notwithstanding that there was no cross-examination of any deponent, some facts can be confirmed, and some inferences drawn.
Mr Singh relied upon twelve (12) affidavits filed in the proceedings, which included sections of an affidavit filed by Ms Singh, the Respondent. Summarily stated, the substance and gravamen of this material (a) outlined the various stages of the Sikh marriage ceremony, which included the giving of gifts to the bride and her family by guests at the various stages of the ceremony, (b) confirmed their attendance at the marriage of the parties,[15] and (c) stressed that there was never any request or demand by the Applicant or by any member of his family for a dowry.[16]
[15] Two detailed accounts of the various stages of the ceremony are found in the affidavit of Ms S, filed on 24th July 2010, and that of Mr U, filed on the same date. In more detail still regarding the stages of a customary Sikh marriage ceremony, see the Applicant, Mr Singh’s, affidavit, filed on 24th July 2009, pars.19-26.
[16] Various members and friends of the Singh family consistently deposed to that family having a tradition against dowries. See, for example, the affidavit of Ms A (the Applicant’s Mother), filed on 24th July 2009.
I stress that, because there was no opportunity for cross examination, the ability of the Court to draw absolute conclusions and or to make specific findings is somewhat compromised. Some of the affidavits, however, are of greater moment than others.
For example, an affidavit was filed by Ms S, the Applicant’s sister-in-law, on 31st July 2009. She confirmed that at her wedding, which was held in India, no dowry was requested, demanded or paid. She confirmed that she and her husband received wedding gifts from family and friends, but these were (she said) “not a pre-condition for our marriage.”
By way of further example, there is an affidavit from Mr B (a [occupation omitted], now living in Canberra), filed on 31st July 2009, whose son is married to the Applicant’s sister. Mr B confirmed that his son’s wedding to the Applicant’s sister (a) took place according to traditional [Sikh] rites, and that (b) it was a “dowry-free marriage.” He continued: “At no time did my son [name omitted], myself, or any members of our family receive, request, demand or were provided a dowry from [name omitted] [his daughter-in-law], her father, or any other members of the Singh family.”
In the light of Ms S’s and Mr B’s [unchallenged] affidavits, one might ask how or why there could be a dowry demanded or claimed for one member of the family, as is alleged in the case of the parties to the current proceedings, but not for his two siblings, both of whom, so it was affirmed, were married according to the same customs and rites, in India, that took place between the Applicant and Respondent? Accepting the respective deponents’ “closeness” to the Applicant’s family, the inconsistency between the respective claims in the current proceedings is patent.
Unfortunately, the Respondent had no such cast of witnesses to support her account of events that a dowry was demanded or requested. While not fatal to her side of the argument, among other things, on the basis of principles encapsulated in the so-called ‘rule in Jones v Dunkel’,[17] the factual disparity between the competing contentions did not aid her cause.
[17] (1959) 101 CLR 298. See generally, Cross On Evidence (Eighth Australian Edition) (J.D. Heydon) (Sydney: Butterworths – Lexis Nexis, 2010) pp.39-46 [1215].
This was heightened somewhat in the light of what is in her affidavit material, and which was relied upon by the Applicant. By this I mean simply that, in her original affidavit, filed on 10th November 2008, at par.4, Ms Singh outlined the simple facts that (a) she and the Applicant met and were married pursuant to an arranged marriage, (b) the marriage took place [in] 2002, and (c) that marriage was followed by a “full marriage ceremony” in “December 2002.” Nowhere is there any reference to anything to do with a dowry. Indeed, even though, in his affidavit of 8th October 2008 (par.94), Mr Singh referred to ‘the dowry issue,’ Ms Singh said nothing about it in her affidavit in reply, which was filed on 7th November 2008. At the time of swearing her affidavit, Ms Singh was legally represented. Unsurprisingly, the Applicant relied upon this paragraph from Ms Singh’s affidavit.
It was not until Ms Singh filed her two affidavits on 24th and 30th July 2009 respectively that she raised the ‘dowry issue’. At the time of filing that affidavit, Ms Singh was a self-represented litigant.
In her July 2009 affidavits, Ms Singh deposed that, in addition to receiving wedding gifts, the Applicant’s parents sought a cash payment of, and were paid by her parents, $25,000 before the wedding. She also contended that the Applicant’s family sought additional gifts “which included clothes and jewellery.”
In the affidavit filed on 30th July, if I have understood the purport of her claim, Ms Singh alleges that in September 2008 she had discussions with the Applicant (and perhaps with some members of his family) that were to the effect that she would forego any claim in relation to the [alleged] dowry on the basis that the parties enter into a contract, which included a penalty clause in the sum of $25,000. She did this, she said, because Ms Singh sought to protect inheritance rights of her son, [X], to his Father’s property in India.
Ms Singh also alleged various kinds of general fraud against the Applicant in relation to his property in Australia and disclosures made in relation to it. Given that the property proceedings have settled, there is no basis to consider these, nor any other allegations that do not relate directly to the matters currently before the Court. And like the dowry issue, these allegations were not raised in her original material before the Court, when Ms Singh was legally represented. No explanation was given why they were not raised earlier.
It is also important to record one other matter in relation to Ms Singh’s case. On 3rd August she appeared before the Court as a self-represented litigant. On that occasion, she informed the Court that she needed time to obtain various affidavits from members of her family in relation to ‘the dowry issue.’ While not sworn testimony, in answer to a question from me as to why, for example, her parents (who were then in New Zealand) had not provided any affidavit evidence up to that point in time, Ms Singh stated:[18]
Because I never knew that he’s going to file a case against me. It is my – like, I have a privilege to file a case against him in India. I never thought that he was going to do it as in Australia, to limit my ability to file a case against him in India. I haven’t done it so far. I haven’t done it so far, and I didn’t even thought of doing that so far, because it is my – I got this privilege that I can file it at any time in India, but I never thought of filing that, because I talked to my lawyer – the Legal Aid lawyer – and he said that whatever matters which were held in India, they’re to be, like, finalised in India on – I never thought of doing that over here, otherwise I would have filed a case that the dowry was there and I need all these things to be settled here.
[18] Transcript (3rd August 2009) p.3.
Other comments made by Ms Singh in the course of the mention of the matter before me in August 2009 included:
(i)whether requested or not, gifts given in the course of the marriage rite came within the definition of “dowry” (“Even if they haven’t asked for all those things, they still accepted it. So that, according to Dowry Prohibition Act, that’s still included in the dowry.”)[19]
(ii)
in answer to a question regarding how long it might take for
Ms Singh to obtain relevant affidavit evidence, she said: “... once they [Ms Singh’s parents] go back [to India] then they’ll get all the evidence and everything and affidavits from all the family members over there at the marriage, and they’ll send it back to me....”[20]
[19] Transcript (3rd August 2009) p.4.
[20] Transcript (3rd August 2009) p.7
Unfortunately, the affidavit evidence promised by Ms Singh never materialised, notwithstanding that she had from early August until the hearing in late November to marshal it.[21]
[21] Transcript (19th November) p. 3.
There is another consequence that arises from Ms Singh’s lack of evidence, and from her brief (albeit unsworn) statements in Court. It will be observed that she stated: “Even if they haven’t asked for all those things, they still accepted it. So that, according to Dowry Prohibition Act, that’s still included in the dowry.”
An argument was advanced on her behalf that the Court had no jurisdiction to make orders, or in the exercise of its discretion, it ought not do so, which “will indirectly affect the position of third parties.” The submission referred to a well-known and often-cited passage in the judgment of Gibbs J in Ascot Investments Pty Ltd v Harper.[22]
[22] (1981) 148 CLR 337 at p.354. For the purposes of these proceedings, I need not consider the 2003 amendments to the Act, located in Part VIIIAA, regarding orders and injunctions binding on third parties.
The ambit of the submission in this regard exposes two problems. First, if the concern relates to an injunctive order that prohibits the wife from co-operating with officials in India concerning any criminal proceedings in that country, subject to its actual terms, it may be the case that no third party is “affected” at all. However, if I understand what Ms Singh submitted, and which was also put by the two advocates from India (Mr S and Mr V), others, such as Ms Singh’s parents, could provide any relevant evidence to the Indian authorities and would likely be better placed than Ms Singh to do so. Thus, the “indirect affect” on third parties would likely be minimal.
Perhaps more troubling is that, according to Ms Singh’s statement, there was no clear distinction between items that could or should properly be designated as “gifts” to the newly married couple, and what could or should properly be designated part of the alleged dowry. Ms Singh provided no evidence as to how the Court could distinguish between these matters. The only specific item identified as part of the dowry was a sum of $25,000.[23]
[23] See [39] of these reasons.
And, if what Ms Singh stated is correct in relation to gifts becoming part of a dowry because they were accepted, it would mean that no gift could be given without the recipients being exposed, at some (or any) time in the future, to prosecution for those gifts actually being part of a dowry, contrary to the DP Act. However, given that Ms Singh was not legally represented at the time she made these statements, it seems to me that I should not place too much weight on them.
I have already indicated that both the weight and the logic of the affidavit evidence – albeit untested, but nonetheless unchallenged – favours the Applicant, Mr Singh. Put another way, from an evidentiary perspective, it seems to me that if it be the case (and I think it is) that the onus to establish the existence of the dowry rested with Ms Singh, in my view, she has not discharged that onus. Mere assertion, without more, is insufficient. Not only were no witnesses called on her behalf (for that matter, none were called on behalf of the Applicant), but, as I have earlier noted, no affidavit evidence was provided by anyone on her behalf. And should it need to be observed, no supporting documentation, such as bank statements or similar evidence, was provided to support her case.
In her oral submissions, Ms Simpson, for Ms Singh, rightly conceded that “the level of evidence about that [i.e. the risk of prosecution of certain family members] is not particularly high at the moment.”[24] Indeed, as I have previously noted in the extracts from comments given by Ms Singh, she confirmed that she had not, and has not, commenced any proceedings in India in relation to the [alleged] dowry, nor, as she said, had she ever thought of doing so. Moreover, there has never been even a suggestion that proceedings have been commenced by anyone else in India in relation to the alleged dowry, nor when (or whether) that likelihood may ever arise.
[24] Transcript (19th November 2009) p.7.
At one level, it may be argued, however, that the current application for injunctive relief is not dependent on any finding, one way or the other, about the existence of a dowry. The application seeks relief, in personam, against the Respondent in relation to Ms Singh seeking any relief under India’s Dowry Prohibition Act. The paucity of evidence before this Court as to the existence of a dowry may be relevant to whether a declaration should be made confirming that it does or does not exist. However, in my view, it may be that the more prudent and just course is to declare, not that there is or is not a dowry (there is simply no factual basis for either declaration), but rather that Ms Singh has not discharged the onus to establish the existence of a dowry. I will come back to the issue of whether a declaration or notation of the kind sought by the Applicant should be made later in these reasons under the heading “Relief.”
That said, in my view, the lack of established facts, or even a declaration of the kind indicated, is not directly relevant to the granting of injunctive relief under s.114 of the Act. The application was fought on the common basis of what might be described as ‘the possibility of a dowry’, and therefore ‘the possibility of [criminal] litigation in India.’ Because of that common basis upon which the application was conducted, it is appropriate that I turn now to the application proper and the competing submissions for granting, and resisting, relief.
D. Submissions
Respondent’s Submissions: The primary submission of the Respondent was as follows. The Application for relief under s.114 of the Act should be summarily disposed of under s.17A of the Federal Magistrates Act1999. The grounds for doing so are that (a) the Court has no jurisdiction to grant the order sought, or (b) the Court could (or should) be satisfied that there is no reasonable prospect of a Court finding the Order sought is “proper”, “appropriate” or “just or convenient.”
E. Jurisdiction
The first ground of resistance by the Respondent to the grant of any injunctive relief has two elements: (i) the subject matter is not amendable to the order sought because it fails, as a matter of jurisdiction, to come within the definition of “matrimonial cause” in s.4 of the Act, and therefore (so it is argued) the Court does not have jurisdiction under s.39(1A) of the Act;[25] and/or (ii) an Australian court is the “clearly inappropriate forum” in which to resolve any legal issue arising under the Indian laws in question in relation to the [alleged] dowry.
[25] S.39(1A) of the Act provides: “Subject to this Part, a matrimonial cause (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) may be instituted under this Act in the Federal Magistrates Court.”
The Respondent says that the relief sought does not come within s.4(e) of the Act, and also questions whether it comes within s.4(ca) or (f) in any event. The definitions of “matrimonial cause” in those sections are as follows:
(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
(ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or
(iii) in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104;
(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB)
(f) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act.
The argument advanced says that the so-called “dowry issue” does not ‘arise out of the marital relationship’, and/or that it does not concern “property of the parties.” As such, on either or both grounds, it fails to attract any jurisdictional foundation under s.114, which (so far as is relevant for current purposes) is in the following terms:
(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a) an injunction for the personal protection of a party to the marriage;
(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d) an injunction for the protection of the marital relationship;
(e) an injunction in relation to the property of a party to the marriage; or
(f) an injunction relating to the use or occupancy of the matrimonial home.
...
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
In the light of authority of some venerability,[26] the Respondent submits that the order sought does not arise out of the marital relationship. There are three reasons for this submission: (a) it is said that the dowry issue preceded the marital relationship; (b) the dowry was not, in any event, the property of the parties (it is property of third parties, being members of the Applicant’s family); and (c) the property proceedings between the parties were resolved by the Consent Orders made by the Court on 2nd July 2009. In relation to this third argument, it was further submitted that, because the Orders were made by the Court on a final basis, the Court was, de facto and de jure functus officio and had exhausted its power in relation to the property proceedings. That power, it was submitted, could not be restored or conferred by agreement of the parties, evidenced by the jointly-signed letter of
18th June 2009, in which the dowry issue was sought to be reserved for final determination by the Court.[27]
[26] Among a number of cases cited by the Respondent, see Mills & Mills (1976) FLC ¶90-079; Farr & Farr (1976) FLC ¶90-133; In the Marriage of Gibb (No.2) (1979) 5 Fam LR 694; and In the Marriage of F (1989) 13 Fam LR 189.
[27] In oral submissions, Ms Simpson described the jointly-signed letter as “perhaps [a] creative approach” to keep the property proceedings open. Transcript (19th November 2009) p.8.
For his part, the Applicant says firstly that even on the Respondent’s own materials, notably at pars.3-5 of her affidavit filed on 24th July 2009, there is evidence of the involvement of the parties in the general marriage negotiations so as to preclude the distance or removal of the dowry issue from the larger marriage discussions between the two families.
Secondly, the Applicant submits that the unchallenged evidence before the Court is to effect that at least part (if not most) of the matériel that is alleged to constitute the dowry (e.g. clothes, jewellery and cash) actually became part of the parties’ property, and indeed, some of the cash was converted into bonds, which are specifically part of the property settlement in favour of the Respondent, Ms Singh.[28]
[28] See Mr Singh’s affidavit, filed on 24th July 2009, par.27, and Recital P to the Financial Agreement, dated 18th June 2009. Par.27 refers to funds being paid to Ms Singh’s parents in order that they could purchase “future development bonds” in the joint names of the parties. Earlier in these reasons I set out Recital P, which for ease of reference states: “The parties intend this agreement shall take effect from the date that [the Respondent] receives property settlement from [the Applicant] (including Bonds worth approximately $12,570 and a motor vehicle) pursuant to the Consent Orders (or within 3 months of the date of this Agreement, whichever first occurs).”
Thirdly, the Applicant essentially repeated the submission that the parties, as it were, mutually “reserved” their position in relation to the dowry for future determination by the Court, and the co-signed letter was simply evidence of this agreed position.[29]
[29] See Transcript (19th November 2009) p.19.
Discussion: In Gibb (No.2), Baker J said:[30] “The phrase “marital relationship”, if it means anything at all, must be taken to refer to the parties’ personal relationships, inter se, as opposed to rights or relationships involving property alone.” This passage was cited in the written submissions on behalf of Ms Singh.
[30] In the Marriage of Gibb (No.2) (1979) 5 Fam LR 694 at p.703.
His Honour helpfully went on the say:[31]
The marital relationship between the parties no longer exists and there would appear to be no facts or circumstances existing which would require the court to protect such marital relationship whatever that relationship may have been. This is not to say however that there cannot be circumstances arising out of a marital relationship which would require the court to grant an injunction under s.114(1) even though the parties have long since been divorced. (Emphasis added)
[31] (1979) 5 Fam LR 694 at pp.703-704.
By way of general observation, on the factual matrix before the Court in this matter, not least being Recital P of the Financial Agreement of 18th June 2009, I have little difficulty entertaining the notion, contemplated by Baker J in Gibb (No.2) which I have highlighted in the previous paragraph, that the facts of this case may well satisfy what his Honour described as “circumstances arising out of a marital relationship which would require the court to grant an injunction under s.114(1).”
However, in the light of Ms Singh’s own affidavit evidence to which I have referred (as did Mr Nash, for Mr Singh), in my view, there is at least sufficient material to allow the Court to consider that the discussions and arrangements regarding the marriage between the parties included, to some degree, discussions and arrangements for some gifts. This is to say that, in my view, there is insufficient evidence to support the contention that the dowry issue was then, and should be now, somehow able to be excised from the marriage arrangements, and thereby, to be excluded from the parties’ property for the purposes of either the property settlement evidenced by the Orders of this Court on 2nd July 2009, or the current application.
For the same reasons, in my view, it is not possible for the Court to hold that the dowry issue preceded the marital relationship. That proposition advanced by the Respondent has not been made out. It is simply an assertion.
In relation to the proposition (and related matters) that the property proceedings were concluded by the Consent Orders of 2nd July, and therefore the Court’s powers being exhausted, I note the following.
First, as a matter of fact, it is clearly correct that the property proceedings were concluded by the Consent Orders made on 2nd July 2009.
Secondly, subject to what is said below, also as a matter of fact, but also as a matter of procedure, the parties agreed – evidenced by the co-signed letter of 18th June 2009 – that the dowry issue required resolution by the Court.
Whether characterised as “creative” or otherwise, Ms Singh agreed, through her then legal representatives, to the dowry issue being litigated to a final resolution. It seems to me that there are two matters to consider in relation to this factual circumstance.
In the first instance, from a jurisdictional perspective, I have some difficulty seeing how this contest is not directly related to the resolution of the property proceedings of the parties. Whether it stands alone as a discrete issue or not, in my view, it is so directly related to the marriage and the marital relationship that this Court cannot avoid dealing with the dowry issue. In my view, in the language of “matrimonial cause” in s.4(ca), the Court clearly has jurisdiction because the issue ‘arises out of the marital relationship’. Put another way, one may ask – somewhat rhetorically – ‘out of what other relationship can or did the alleged dowry arise, if not the marital relationship of the parties?’
On the facts as set out in these reasons, the jurisdictional foundation for the Court dealing with the matter is also supported by the definition of “matrimonial cause” in s.4(e) – “proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship...”, and by s.4(f) – “any other proceedings ... in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb) ...” (Emphasis added.)
This conclusion in favour of the Court having relevant jurisdiction to deal with the matter is supported by the following authority.[32]
[32] The connection between s.4(e) concerning “matrimonial cause” and s.114(1), has previously been noted. I will, however, leave the discussion of s.114(1) and s.114(3) until later in these reasons.
A convenient starting point is the judgment of Taylor J in Lansell v Lansell.[33] In that case, his Honour discussed the jurisdiction of the Family Court under s.86 of the Act. His Honour said:[34]
It is a jurisdiction which is exercisable only “in proceedings under this Act”, that is to say, in applications for orders directing settlements in relation to proceedings of the kind specified in pars. (a) and (b) of the definition of “matrimonial cause”. ... It is a jurisdiction which is exercisable only where the application bears an appropriate relationship to substantive proceedings which admittedly constitute a matrimonial cause, that is to say, where the application can fairly be said to be incidental to the relief obtainable or already obtained in the substantive proceedings. (Emphasis in original text.)
[33] (1964) 110 CLR 353.
[34] (1964) 110 CLR 353 at p.367. See also the remarks of Kitto J at pp.361-362, where his Honour spoke of “re-adjustment of the property rights of spouses ... if consequential injustice to one or both of the spouses ... is not to result.” And see further the general remarks of Gibbs CJ, albeit in the context of “custody/ wardship proceedings”, in Fountain v Alexander (1982) 150 CLR 615 at pp.624-625.
In Goldsworthy v Goldsworthy (No.1), the Full Court of the Supreme Court of South Australia considered the term “completed proceedings” in the context of the definition of “matrimonial cause” in the Family Law Act.[35] In that case, the parties were married in 1948. They separated in 1971 and were divorced that same year, pursuant to the provisions of the Matrimonial Causes Act1959 (Cth). It was not until 1978 that property proceedings were commenced under the Family Law Act.
[35] (1981) 8 Fam LR 416.
Although formally obiter, the Court considered “whether the present proceedings “between the parties to a marriage in respect of the property of the parties to the marriage” are also “proceedings in relation to ... completed proceedings for principal relief between those parties”, or whether they ought to be regarded as unrelated to and independent of the proceedings for principal relief.” The Court considered that “... that would seem to be a matter of fact and degree in every case....”[36] Respectfully, I agree and adopt the Court’s comments.
[36] (1981) 8 Fam LR at p.418.
In the present case, in my view, “the fact and degree” to which the Full Court in Goldsworthy (No.1) referred, are telling in favour of the Court having and exercising jurisdiction. In my view, the statement of principle by the Full Court, albeit obiter, is congruent with later statements to similar effect by the High Court.
For example, in Perlman v Perlman, Gibbs CJ said:[37]
The words "in relation to" import the existence of a connexion or association between the two proceedings, or in other words that the proceedings in question must bear an appropriate relationship to completed proceedings of the requisite kind: see Reg. v. Ross-Jones; Ex parte Beaumont [1979] HCA 5; (1979) 141 CLR 504, at p 510. An appropriate relationship may exist if the order sought in the proceedings in question is consequential on or incidental to a decree made in the completed proceedings (so that, e.g., an application by a divorced wife for a settlement and transfer of property is a proceeding in relation to the completed proceedings for the divorce: Reg. v. Ross-Jones; Ex parte Beaumont (1979) 141 CLR, at pp 510-511, 520). It may exist if the order sought in the later proceedings would reverse or vary the effect of the order made in the former (e.g., where an application under s. 61(4) of the Act is brought by a surviving parent for custody of a child when that custody has been awarded to the other parent, since deceased: Dowal v. Murray [1978] HCA 53; [1978] HCA 53; (1978) 143 CLR 410, at pp 417, 423, 427); or where an application for custody of a child of a marriage since dissolved is made by a stranger to the marriage against a party to the marriage who has been granted custody by an order in previous proceedings: Fountain v. Alexander [1982] HCA 16; (1982) 150 CLR 615, at pp 624, 629, 645.
[37] (1984) 155 CLR 474, at p.484. See also the discussion by Wilson J at p.498, where his Honour accepted that the words “in relation to” were of wide import. The proceedings in Perlman concerned the enforcement of provisions of a maintenance agreement. His Honour held further that, because the Act has separate provisions that deal with enforcement, there was clear legislative intent that enforcement proceedings were not intended to be embraced by the definition of “matrimonial cause” in s.4. The High Court held that the enforcement proceedings did not come within the definition of “matrimonial cause” in the Family Law Act.
His Honour repeated this passage in the later case of R v Ross-Jones; Ex parte Green and gave various other examples of what were, and what were not, matters or proceedings “in relation to” ‘a matrimonial cause’.[38] That case concerned an attempted enforcement of a judgment obtained in the Victorian Supreme Court by the wife’s Mother against the wife’s former husband. In property proceedings brought by the former husband, he sought an order in relation to his former wife that she indemnify him in relation to the Supreme Court judgment, and a separate order to restrain his former mother-in-law from enforcing the judgment against him. He further sought an order to set aside the judgment in the Supreme Court.
[38] (1984) 156 CLR 185 at pp.197-198.
The Family Court granted an interim injunction to restrain the mother-in-law from enforcing her judgment against the former son-in-law. The High Court held that the Family Court had erroneously found a sufficient connection or association between the former mother-in-law and the proceedings in the Victorian Supreme Court, on the one hand, and her daughter’s former husband, on the other hand, so as to found jurisdiction and grant injunctive relief. The High Court held that there was insufficient connection or association between the enforcement proceedings brought by the former mother-in-law and the husband’s s.79 property proceedings in the Family Court. The High Court granted writs of prohibition and certiorari against the Family Court.
Using the words of Gibbs CJ in Perlman, and repeated in Ross-Jones; ex parte Green, in my view, on the facts of this case, ‘the current proceedings bear an appropriate relationship to completed proceedings of the requisite kind.’ It seems to me that, at the least, the current application is “consequential on or incidental to a decree made in the completed proceedings.”
Pointedly in Ross-Jones, Gibbs CJ said of the passage cited above from Perlman: “I do not suggest that this recital is exhaustive, but it serves to indicate the nature of the relationship that must exist between the two sets of proceedings if one of them is to fall within par.(f).”[39] Respectfully, in my view, the facts and circumstances in this case may be added to the non-exhaustive list contemplated by Gibbs CJ.
[39] (1984) 156 CLR at p.197.
But, in my view, there is yet a further ground for exercising jurisdiction in the current proceedings. Posed rhetorically, why should the Court not exercise jurisdiction in circumstances where Ms Singh agreed in writing with Mr Singh to submit herself, and the remaining issue in dispute between the parties, to the determination of the Court, and in circumstances where the request in writing from the parties (a) accompanied the terms of settlement signed by them, and (b) which confirmed that there remained an issue that could not be included in the property settlement because it could not be agreed? Put another way, why should Ms Singh be permitted to renege on her agreement with
Mr Singh, which was coterminous with the terms of settlement?
By so-signing the letter, she “represented” to Mr Singh that (a) there was an unresolved issue concerning the alleged dowry, and (b) this Court should resolve it.[40] Couched in those terms, her conduct may be said to fall within the parameters of Dixon J’s description of estoppel in Grundt v Great Boulder Proprietary Gold Mines Ltd.[41] In that case, his Honour said:
The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations. ... The justice of an estoppel is not established by the fact in itself that a state of affairs has been assumed as the basis of action or inaction into a detrimental change of position. It depends also on the manner in which the assumption has been occasioned or induced. Before anyone can be estopped, he must have played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it.
[40] In this regard, see also Mr Nash’s “Further Written Submissions on Behalf of the Applicant Husband”, filed on 9th December 2009, par.1.1.
[41] (1937) 59 CLR 641, especially at pp.674-677. This case has been cited regularly with unqualified approval by subsequent High Court cases, such as Legione v Hateley (1983) 152 CLR 406 at pp.430-432 (Mason & Deane JJ), and others cited in K.R. Handley, Estoppel by Conduct and Representation (Sydney: Thomson/Sweet & Maxwell, 2006) passim.
In Dixon J’s terms, (a) both parties agreed in writing to the Court determining the issue concerning the dowry; (b) in addition to the agreed position, the “manner in which the assumption has been occasioned or induced” is evidenced by the co-signed letter. Ms Singh should not be permitted to walk away from the clear terms and intent of that letter.
Finally, because of the conclusion I have reached, namely that the current application comes within relevant definitions of “matrimonial cause”, it follows that the Court’s powers are not exhausted.
For the above reasons, in my view, the Court has jurisdiction, pursuant to the combined operation of s.4 and the definition of “matrimonial cause” and s.39(1A) of the Act, to deal with the current application in relation to the ‘Indian dowry issue.’
F. Forum non conveniens
The next argument advanced by the Respondent was that, because the issues raised in the ‘dowry issue’ involve the application of Indian criminal law, on the principles established in Voth v Manildra Flour Mills Pty Ltd,[42] this Court (indeed any court in Australia) was (and is) an inappropriate forum to consider and determine that issue.
[42] (1990) 171 CLR 538. In Puttick v Tenon (2008) 238 CLR 265, the plurality judgment (French CJ, Gummow, Hayne & Kiefel JJ) at p.277 [29] & [30], refused the invitation to restate, while the joint judgment (Heydon & Crennan JJ) at p.280 [38], refused to reconsider and over-rule or modify, the principles established in Voth.
Summarily stated, the Respondent’s argument ran as follows. It was submitted that this Court was a ‘clearly inappropriate forum’ in circumstances where the law in question (the DP Act) was designed to deal with a “very specific social problem which is virtually unknown to Australia” and “where all the relevant events all occurred in India.”
In Voth v Manildra Flour Mills Pty Ltd, the relevant principles were stated thus:[43]
First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised "with great care" or "extreme caution".
[43] (1990) 171 CLR 538 at p.554 [30] (Mason CJ, Deane, Dawson & Gaudron JJ). This passage in Voth was referred to directly by the plurality judgment in Puttick v Tenon, at 238 CLR at p.277 [29], and cited in full in the joint judgment, at p.281 [43].
The plurality judgment in Voth also commented (noted in the joint judgment – Heydon & Crennan JJ - in Puttick v Tenon)[44] ‘that in applying those principles the discussion by Lord Goff of Chieveley in Spiliada Maritime Corp v Cansulex Ltd of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance.’[45]
[44] (2008) 238 CLR 265 at p.281 [43].
[45] Voth (1990) 171 CLR 538 at pp.564-565. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at pp.477-478 & 482-484. In his discussion in Spiliada, Lord Goff referred, among other things, to the need to ensure that “practical justice” was done. Noting the qualification by the High Court, Lord Goff’s discussion of “legitimate personal or juridical advantage” has its origins, of course, in earlier discussions by, for example, Lord Diplock in Rockware Glass Ltd v MacShannon; Redpath Dorman Lond Ltd v Fyfe [1978] AC 795 at p.812, and the English Court of Appeal (Denning MR, Ackner & O’Connor LJ) in Smith, Kline & French Laboratories Ltd v Bloch [1983] 1 WLR 730.
Voth is also important for its discussion of what is and what is not “vexatious” and “oppressive” in the context of allowing, or staying, proceedings in the instant forum. For current purposes, it is sufficient to note the following comments from the plurality judgment:[46]
[46] (199) 171 CLR 538 at p.555 [31]. The High Court in Puttick v Tenon, at p.277 [29] also referred to this discussion. See also the comments of Deane J in Oceanic Sun Line Special Shipping Co. Inc v Fay (1988) 165 CLR 197 at p.247 to the effect that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". This approach of Deane J was confirmed in Voth, (1990) 171 CLR0538 at pp.564-565, and in Henry, (1996) 185 CLR 571 at p.587.
There was a difference of opinion about the content of the
adjectives "oppressive" and "vexatious". Brennan J. considered
that they should be understood in the rather strict sense stated
by Lord Kilbrandon in The "Atlantic Star", at p 477. However,
Deane J. agreed with the caution uttered by Lord Wilberforce in
The "Atlantic Star", at p 464, against construing "oppressive"
and "vexatious" too rigidly in the context of dismissing or
staying an action on inappropriate forum grounds. His Honour
said that "'oppressive' should, in this context, be understood
as meaning seriously and unfairly burdensome, prejudicial or
damaging while 'vexatious' should be understood as meaning
productive of serious and unjustified trouble and harassment"
(at p 247). His Honour also took the view that the words should
be read as describing and characterizing the objective effect,
on balance, of a continuation of the proceedings and a particular
forum as the venue of proceedings rather than as describing the
conduct of the plaintiff in selecting or persisting with that
forum. Gaudron J., at p 266, stated her agreement with the test
stated by Deane J., subject to a qualification to which we shall
refer later in these reasons.
In Voth, the High Court also cautioned against courts in this country concerning themselves with “an assessment of the comparative procedural or other claims of the foreign forum.”[47]
[47] Voth, (1990) 171 CLR 538 at p.558. In the same place, the Court also observed as an “important point” that “in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the court may more readily conclude that it is not a clearly inappropriate forum.”
The decision in Voth has, of course, also been considered and applied in a range of cases since it was delivered, and also since the more recent High Court decision in Puttick v Tenon. It is relevant to consider some of those cases briefly.
First, in Henry v Henry,[48] the High Court held that the Voth principles applied to divorce proceedings and, although the jurisdiction of the Family Court was regularly invoked, that Court was held to be a clearly inappropriate forum in circumstances where the appellant was a German national resident in Monaco, and the respondent, although an Australian citizen, had resided also in Monaco for a significant period of time. Further, the parties were married in Germany and, significantly, the parties spent no part of their married life in Australia.
[48] (1996) 185 CLR 571.
In Henry, the plurality judgment of Dawson, Gaudron, McHugh & Gummow JJ said:[49]
35. It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
36. It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation. [Internal citation omitted.]
[49] (1996) 185 CLR 571 at p.591 [35] & [36].
In the same case, the High Court also stated:[50]
40. Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, 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.
[50] (1996) 185 CLR 571 at pp.592-593 [40].
In the result, the High Court granted a stay and over-ruled the Full Court of the Family Court. A not insignificant consideration for the High Court was the failure of the Family Court to pay sufficient regard to proceedings that were already on foot in Monaco.[51]
[51] (1996) 185 CLR 571 at p.593 [42]. The decision in Henry was applied by the Full Court in Kemeny v Kemeny (1998) 145 FLR 6; (1998) 23 Fam LR 105, and more recently still, also by the Full Court, in Pagliotti v Hartner (2009) 41 Fam LR 41.
It will be recalled that there are no proceedings on foot in India in the current matter and, according to Ms Singh, there are (or were) none even contemplated by her until Mr Singh sought relief from this Court pursuant to the current application.[52]
[52] The same consideration was clearly of relevance to Finn J, sitting as a single judge but constituting the Full Court pursuant to s.94AAA(3) of the Act, in Kapoor & Kapoor [2010] FamCAFC 113, where, at [56], her Honour said: “Expressed in correct legal terminology the question would be whether an Australian court is “a clearly inappropriate forum”, although for this question to arise there would need to be proceedings on foot in India, which there are not.” Emphasis added.
Ms Singh next submitted that the decision of O’Ryan J in Steen & Black,[53] and its application of the Voth principles, assisted the Court in determining that a permanent stay of the proceedings in this Court should be granted. Particular reliance was placed on paragraphs 146, 149 and 155 of O’Ryan J’s judgment. His Honour’s discussion begins at [144] with a reference to Voth and references from Professor Nygh’s seminal study, Conflict of Laws in Australia (6th Edition).[54] His Honour’s discussion proceeded as follows:[55]
[53] Steen & Black (2000) FLC ¶93-005.
[54] The relevant, and somewhat more refined, summary of principle in the latest edition of that same work, M. Davies, A.S. Bell, P.L.G. Brereton, Nygh’s Conflict of Laws In Australia (Eighth Edition) (Sydney: Lexis Nexis Butterworths, 2010) is found at pp.169-172 [8.19] – [8.24].
[55] Respectfully, it is somewhat surprising that, in the course of his judgment, O’Ryan J seems to refer to and to rely upon the Full Court decision of Gilmore v Gilmore (1993) FLC ¶92-353, when that decision was expressly disapproved by the High Court in Henry (1996) 185 CLR 571 at pp.588-591.
146. It is necessary to consider whether there is significant connection between the forum selected and the subject matter of the action and/or the parties, such as their domiciles, their places of business, the places where the relevant transactions occurred or the subject matter of the suit is situated.
147. Each of the parties are domiciled, residents or nationals of Australia. The parties spent a significant portion of the marriage relationship outside Australia, but in circumstances where they always intended to return.
148. The assets sought to be divided are located in Australia.
149. It is necessary to consider whether or not there is any legitimate and substantial juridical advantage to the wife in bringing her action in the Family Court. In Spiliada v Cansulex Ltd [1987] 1 A.C. 460 at 482-3 Lord Goff identified relevant matters such as the earlier trial, greater scope for discovery, better recovery of damages and opportunity for enforcement and a more advantageous limitation period. In Voth the High Court at p.565 described Lord Goff’s list as being of valuable assistance.
150. It was submitted that, in the circumstances of this case, it is implicit in the case of the wife that she will recover a substantial award under s.79 Family Law Act. However, it is implicit in the husband’s case that she will get nothing more in New Zealand. In Gilmore (1993) FLC 92-353 it was acknowledged that the wife under the Family Law Act could ask the court to take property acquired by the husband after separation into account, whereas this was not possible under New Zealand law.
151. It was submitted that the New Zealand legislation does not provide for a component in the award to be determined by any equivalent to s.79(4)(e) Family Law Act and thus the local forum presents a substantial legitimate juridical advantage.
152. It is necessary to consider the availability of an alternative forum and whether it will give the plaintiff adequate relief: see Voth (supra) at p.558. It was submitted that the question is whether substantial justice will be done in the appropriate forum overseas”.
153. There is a forum in New Zealand. The wife may recover there, subject to obtaining an extension of time to institute proceedings: see s.24(2) New Zealand Act. The husband says she will not. If she cannot, and a real question arises as to whether any order would be made as a consequence of s.7 of the New Zealand Act, then this is a significant factor in her favour in the present proceeding.
154. It was submitted that in any event it is a wholly inconvenient forum in circumstances where neither party has any present or future connection with that country. It was submitted, and I accept, that there are no parallel proceedings on foot and it would be farcical in circumstances where there have been no proceedings in New Zealand to suggest that two Australian citizens should go there on what counsel called a litigation holiday.
155. It is relevant to consider whether the law of the forum will be the substantive law to be applied in the resolution of the parties' rights and obligations: Voth (supra) at p.566. In Gilmore (supra) Fogarty J said at p.79,728 that this factor is not significant in matrimonial property proceedings where each court tends to apply its own law.
156. It was submitted that the point can be made that the assumption of jurisdiction by an Australian court will lead to the application of Australian law.
157. It was submitted, and I accept, that not only can it not be said that Australia is a clearly inappropriate forum but indeed it is clear that Australia is the natural forum for these proceedings.
Respectfully, Steen & Law, may properly be characterised as a first instance, orthodox statement of principle which mirrors High Court and Full Court authority. In this respect, I have some difficulty seeing how it particularly aids the Respondent in the current proceedings, especially in the light of later (and judicially higher) authority.
Another High Court decision of some relevance is the brief discussion in the later case of Regie Nationale des Usines Renault SA v Zhang sub nom Regie National des Usines Renault SA.[56] In that case, at [72], the Court said: “Where, as here, the applicant on a stay motion seeks to rely upon a foreign lex causae as providing an advantage, then, at a level of specificity, the applicant should advance appropriate evidence as to the foreign law and particular features of that law which provide that advantage to the applicant.”
[56] (2002) 210 CLR 491 (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ). The learned authors of Nygh’s Conflict of Laws in Australia, suggest, at p.173 [8.28], that the approach of the High Court in Zhang was rather more robust and “stark” in contrast to the approach of the Court in Voth and Henry.
Further, the High Court said, at [78] – [79]:
[78] In that regard, Mr Zhang submits that, in ordering the stay, albeit on conditions, the primary judge did not properly consider the matters required by the authorities. There is substance in that submission. It was not a question of striking a balance between competing considerations. Rather, it was the task of the Renault companies as applicants on the motion to demonstrate that a trial in New South Wales would be productive of injustice, because it would be oppressive in the sense of seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the sense of productive of serious and unjustified trouble and harassment.
[79] The primary judge did not state his conclusion in anything resembling those terms. Rather, stating that he found it a very difficult case, he ordered the stay "after weighing all the factors".
Four other very recent cases may be noted briefly. First, in TS Production LLC v Drew Pictures Pty Ltd,[57] Sundberg J, of the Federal Court of Australia, helpfully summarised what he described as principles in anti-suit injunctions and stay applications in the following terms:[58]
[57] (2009) 250 ALR 97.
[58] (2009) 250 ALR 97 at pp.108-109 [56]. Respectfully, I note that his Honour seems – perhaps for ease of reference and convenience - to have joined the principles of the two remedies – anti-suit injunction and stay – whereas the learned authors of R.P. Meagher, J.D. Heydon, M.J. Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies, Fourth Edition (Sydney: Butterworths – Lexis Nexis, 2002) at [21-165] and particularly footnote 84 at p.735, on the authority of the High Court decision in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 571 (considered later in these reasons), strongly suggest that there are distinguishing principles applicable to each form of relief.
[56] The following principles can be derived from decisions of the High Court in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 ; 79 ALR 9; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 ; 97 ALR 124 and CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 ; 146 ALR 402 ; [1997] HCA 33:
(a) Where an anti-suit injunction is sought in an Australian court in relation to proceedings in another country, the court should first consider whether it is appropriate for it to determine the matter in issue before deciding whether to grant the injunction.
(b) A stay is only granted if the Australian court is a clearly inappropriate forum.
(c) The onus is on the party seeking a stay to satisfy the court that the continuation of the case would be oppressive or vexatious to the party having regard to the existence an appropriate tribunal in another country.
(d) The power to stay proceedings is discretionary, in that it involves a subjective balancing process in which the comparative weight to be given to the particular factors in the circumstances of the case, and the decision whether the power should be exercised, are matters for individual judgment and, to a significant extent, matters of impression.
(e) Relevant connecting factors include the law that is to be applied, whether the proceeding has a substantial connection with the law of Australia or the foreign jurisdiction, whether the relevant acts or omissions took place in Australia or the foreign jurisdiction, the parties’ places of residence, the location of witnesses and the relative ease of access to sources of proof.
(f) If the Australian court is clearly an inappropriate forum, that is the end of the matter, and the considerations going to whether anti-suit relief should be granted do not arise.
(g) If the Australian court is not clearly an inappropriate forum, the court may require the applicant to seek a stay or dismissal of the foreign proceeding, or may proceed to determine whether an anti-suit injunction should be granted.
(h) Where there is litigation in an Australian court in which complete relief may be had, the institution by a party to that suit of proceedings abroad will generally be vexatious or oppressive, because there is nothing that can be gained by the party over and above what may be gained in the local proceeding.
(i) Where the proceeding abroad will give other or additional remedies beyond those available in the Australian court, the foreign proceeding will not be vexatious or oppressive.
(j) Where different issues are involved in the local and foreign proceedings, albeit that the two proceedings arise out of the same substratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceeding. Rather it is whether, having regard to the controversy as a whole, the Australian proceeding is vexatious or oppressive, namely that they are productive of serious and unjustifiable trouble and harassment to the other party.
The New South Wales Court of Appeal undertook a further discussion of the application of the Voth principles in Garsec Pty Ltd v His Majesty the Sultan of Brunei.[59] It is sufficient to note the detailed observations by Spigelman CJ, at [9] – [19], and those of Campbell JA at [40] – [49] and [137] – [149]. For current purposes, it is also apt to note Campbell JA’s observation:[60]
[94]Notwithstanding the truth of the observation of Giles CJ Comm D in News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250 at 258; 21 ACSR 403 at 410 that “Regrettably, the position envisaged in Voth v Manildra Flour Mills Pty Ltd is not often achieved”, the essential nature of the task of a judge in deciding whether to grant a stay on inappropriate forum grounds remains the formation of a discretionary judgment based on weighing factors presented by the instant case. Thus, as the majority in Voth remarked (at CLR 570; ALR 145):
… the question is preeminently one for the trial judge, an appeal should be rare and an appellate court should be slow to intervene.
[59] (2009) 250 ALR 682.
[60] (2009) 250 ALR 682 at p.702 [94].
In Du Bray v McIlwraith,[61] Barrett J of the New South Wales Supreme Court dealt with an application that arose out of a de facto relationship where there was property in New Zealand and the parties in question had lived some time in that country but also in New South Wales.
[61] (2009) 259 ALR 561.
The proceedings before the Supreme Court were held, at [59] – [60], to be oppressive, because they had been brought in the full knowledge of the nature and extent of the claims that the defendant might seek to bring in New Zealand, which were unavailable in NSW. The Court held that the proceedings in New South Wales were initiated with the precise intention of creating a platform from which he could seek to obtain a stay of the New Zealand proceedings. Moreover, the Court also held that it could not and would not make any order in relation to the residential property in New Zealand.[62]
[62] The detailed discussion by Barrett J, of principles concerning the stay application, and of injunctive relief, is found at 259 ALR at pp.570-571 [53] – [58].
The most recent discussion of relevant principle is by the New South Wales Court of Appeal in Murakami v Wiryadi.[63] In that case, the issues involved property of a testator whose executor instituted proceedings in the Supreme Court of New South Wales. The property was located in the United States, Indonesia, Singapore and Australia. The property the subject of the proceedings in NSW was solely located in that state.
[63] (2010) 268 ALR 377 (Spigelman CJ; McColl & Young JJA agreeing). Because this decision was delivered on 15th February 2010, after submissions by the parties in the present proceedings, my Chambers wrote to the parties inviting any further, written submissions in the light of this decision. That correspondence also invited the parties to provide submissions specifically on anti-suit injunctions, notwithstanding there had been submissions at the hearing in relation to injunctive relief under s.114 of the Act.
An application was brought to stay the Australian proceedings on the basis that relevant issues could (or should) be determined by the Courts of Indonesia. The parties to the proceedings were, respectively, a resident of the USA, and Indonesian citizens. At first instance, a stay was granted. Between the time of granting the stay and the appeal, proceedings were also instituted in Singapore to agitate the same issues. On appeal, the stay was removed and the proceedings in New South Wales permitted to continue.
Among other things, Spigelman CJ observed, at [49], that, in the matter before him, the proceedings in Indonesia were “entirely hypothetical.” In the same place, his Honour further noted that “... the expert evidence adduced in this case does not identify what those proceedings [in Indonesia] would be.”[64]
[64] Later in his judgment, at [66], Spigelman CJ also observed: “... it is not appropriate to definitively resolve a complex choice of law question when the legal issues to be determined have not been identified. This application is based solely on the statement of claim. No defence has been filed. The identification of possible legal issues has been made solely on the basis of the respondents’ expert evidence about Indonesian law. This evidence is given at a level of abstraction which does not identify any specific legal issues which will arise.” Query whether his Honour’s comments have direct application here in terms of either the generality of the claim asserted by Ms Singh, and or whether the evidence before the Court is also at such a level of abstraction as to be of questionable assistance.
Then, at [53], the Chief Justice said:
... while it is permissible to have regard to the “connecting factors” identified by Lord Goff, and also to have regard to the suitability of the alternative forum, the need to establish that the local forum is not only “inappropriate” but “clearly” so indicates that something more than merely balancing relevant considerations is required.
After dealing with a variety of other matters,[65] his Honour simply stated, at [154]: “... The only dispute appears to be about identification of that [marital] property. This is a question of fact.”
[65] In the course of discussing the Voth test, Spigelman CJ observed, at [113], that “[t]here appears to be a drift away from the traditional approach to marriage as a relationship based on status, to a relationship including contractual rights and obligations”, and further, at [147], that “... disputes over matrimonial property should be accepted as a distinct category for choice of law purposes”.
In the light of this extended discussion on the Voth test, I will deal with two matters: (a) identification of the relevant property; (b) application of the Voth test to the facts of this matter.
Identification of Relevant Property: I have previously addressed concerns in relation to identifying the “property” of the dowry, but for more abundant caution I note (again) the following.
The issue of the relevant property noted by Spigelman CJ in Murakami also arises here, thus: there is an assertion by Ms Singh of certain property that is said to constitute a dowry. Apart from a sum of $25,000, that property is said to include certain gifts (e.g. jewellery, clothes) which appear to have been given in the course of a lengthy, traditional Sikh marriage ceremony. Apart from these general descriptions, it is impossible for this Court to identify, with an appropriate degree of certainty, what actually comprised the alleged dowry. Moreover, as I have previously noted, Mr Singh contends, and points to the signed Financial Agreement, that at least part of the alleged $25,000 was used to buy bonds, which in turn are to become (and presumably have become) part of the wife’s property settlement. In the absence of appropriate evidence that identifies the property that comprises the dowry, all the Court has is an assertion of its existence. Thus, this evidentiary hurdle has not been properly negotiated by
Ms Singh.
Application of the Voth Test: Having determined that the Court has jurisdiction, the question now is whether, on the principles established by the High Court in Voth, and confirmed in Puttick v Tenon, the proceedings currently before this Court should be permanently stayed because the Court is a clearly inappropriate forum? In making such a determination the Court must have regard to whether the proceedings before it are oppressive or vexatious to Ms Singh. On the authority of, among other cases, Zhang, she bears the onus of establishing that the continuation of the proceedings here leads to that conclusion.
Without canvassing every submission, and having regard to what has already been traversed in these reasons, on her behalf, it was submitted that this Court would need to be satisfied that it had the requisite evidence before it of Indian law and, in effect, be confident of making determinations (of any kind) in relation to the dowry in the light of the Court’s knowledge and understanding of Indian law.
Summarily stated, I note the following: no proceedings have ever been commenced in India in relation to the alleged dowry; there is no indication as to whether, and if so when, any such proceedings might commence; the indication from Ms Singh was that she had not even contemplated doing whatever may be required to initiate ‘dowry-related proceedings’ until Mr Singh commenced the current proceedings; arguably, at least some if not a substantial part of the property the subject of the alleged dowry is now in Australia and, on Mr Singh’s unchallenged evidence, it even forms part of the property settlement between the parties; despite the opportunity to do so,
Ms Singh filed no affidavit material (or called any witness, or sought to cross-examine any of Mr Singh’s witnesses) to support any of her contentions; both parties are Australian citizens (as is their son) who reside and work here; and Ms Singh, through her legal representatives, confirmed in writing that this Court should adjudicate on the issue of the alleged dowry.
Given that (a) the level of expert evidence before the Court regarding Indian law might (respectfully) be characterised as being at a certain level of generality, (b) no proceedings have been instigated in India, nor is there any suggestion that they will actually eventuate at all, and (c) it would seem that the initiative of any such proceedings in India would only follow from a complaint by either Ms Singh or some member of her family (neither of which has occurred), it is difficult to see what juridical or personal advantage Ms Singh could credibly claim in having criminal proceedings instigated in India.
Conversely, on the limited expert evidence available to the Court,
Mr Singh (and perhaps members of his family) risk trial and (perhaps) incarceration in India for matters which they, and a significant number of unchallenged witnesses, strongly deny ever having taken place. Moreover, according to Ms Singh, she described the [possible] criminal dowry proceedings as a “privilege” which she possessed, and seemingly so, for a completely indefinite period.
Having regard particularly to (a) the citizenship and residence of the parties, (b) the lack of proceedings in any Indian Court, (c) the indefinite nature of the commencement of any such proceedings (in no way could they be described as “pending” – they might more correctly be described as “possible” or even “hypothetical”), (d) the unchallenged denials of Mr Singh that a dowry exists or was ever requested/demanded, and a large number of witnesses who have provided unchallenged testimony on his behalf to similar effect, (e) the lack of specificity of the property that could (with sufficient certainty) be said to comprise the alleged dowry, (f) the unchallenged evidence that a significant portion of the alleged property has now become part of the property owned by Ms Singh pursuant to the property settlement, (g) the lack of evidence from Ms Singh in relation to any relevant matter that could be said to establish that a dowry existed, and (h) the fact that both parties have voluntarily submitted themselves to this Court to determine ‘the Indian dowry issue,’ in my view, she has not discharged the onus to establish that this Court is a “clearly inappropriate forum.”
For the same reasons, I do not consider that Ms Singh has established that the current proceedings come within the Voth and Henry descriptions of being ‘vexatious or oppressive’ and therefore warranting a stay. Indeed, using the High Court’s words in Zhang,
Ms Singh has not, in my view, demonstrated that these proceedings are “productive of injustice” because they are “oppressive in the sense of [being] seriously and unfairly burdensome, prejudicial or damaging, or vexatious, in the sense of serious and unjustified trouble or harassment.”[66]
[66] (2002) 210 CLR 491 at p.521 [78].
Mr Singh agreed with Ms Singh to invoke the jurisdiction of this Court. This was done so “regularly” (Voth). In the light of the significant lack of evidence produced on her behalf, Ms Singh has not established “clearly” (Spigelman CJ in Murakami) that this Court is an inappropriate forum. Moreover, as the High Court stressed in Voth, “the jurisdiction to grant a stay or dismiss the action is to be exercised “with great care” or “extreme caution.””[67] In the circumstances of this case, that care and caution should be exercised in favour of Mr Singh so as not to grant the stay of these proceedings.
[67] Voth (1990) 171 CLR 538 at p.554.
The next question to address is whether the injunctive relief sought by Mr Singh should be granted?
G. Anti-Suit Injunction: General Principles
The relief sought by Mr Singh, under s.114 of the Act may properly be characterised as an anti-suit injunction because, in broad terms, it seeks to restrain Ms Singh from initiating, or otherwise engaging in, criminal proceedings in India in relation to the dowry which she alleges was paid by her parents, or formed part of gifts to Mr Singh and or his family. The judicial touchstone for such relief is the High Court decision in CSR Ltd v Cigna Insurance Australia Ltd.[68] The High Court discussion of relevant principle begins under the heading “Principles governing stay of proceedings on forum non conveniens grounds and the grant of anti-suit injunctions.”[69] The following comments and principles from that judgment should be noted for the current proceedings.
[68] (1997) 189 CLR 571. See also Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, especially at pp.242-248 [93] – [104] (Gummow & Hayne JJ), and the Full Court decision in Dobson v Van Londen (2005) 33 Fam LR 525, especially at pp.pp.531-540 [36] – [69] (Finn, May & Boland JJ).
[69] (1997) 189 CLR 345 at pp.389-401.
First, the High Court said: “If the bringing of legal proceedings involves unconscionable conduct or the unconscientious exercise of a legal right, an injunction may be granted by a court in the exercise of its equitable jurisdiction in restraint of those proceedings no matter where they are brought.”[70]
[70] (1997) 189 CLR 345 at p.392 (internal citations omitted).
Secondly, the power to grant injunctions in relation to foreign proceedings:[71]
...is a power the limits of which are determined by the dictates of equity and good conscience. Thus, for example, it may be that the bringing of proceedings with respect to one claim is properly to be seen, in the circumstances of the case, as an election either not to proceed on another claim or not to proceed in another jurisdiction, thus giving rise to an estoppel by conduct such that it would be unconscionable for that other claim to be pursued or for proceedings to be commenced in another jurisdiction. In cases of that kind an injunction may issue in restraint of the subsequent proceedings.
[71] (1997) 189 CLR 345 at p.394.
Thirdly, the Court recognised that:[72]
The cases concerned with injunctions in restraint of proceedings in foreign courts recognise that, although an injunction of that kind operates in personam, it nevertheless interferes with the processes of the foreign court and may well be perceived as a breach of comity by that court.
[72] (1997) 189 CLR 345 at p.395. (Internal references omitted.) See also the general discussion by Lord Goff, on behalf of the Privy Council, in Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871, especially at p.892. Lord Goff’s judgment was cited by the High Court in CSR v Cigna Insurance, passim.
Unsurprisingly, Ms Singh submitted and emphasised the risk of any order made by this Court as being an interference with the criminal justice system in India. In accordance with the High Court’s guidance, “the power to grant injunctions in restraint of foreign proceedings should be exercised with caution.”[73]
[73] (1997) 189 CLR 345 p.396.
The High Court also noted that proceedings that were instituted specifically to prevent another party from pursuing remedies available in the courts of another country, and which are not available in this country are ‘seriously and unfairly prejudicial and damaging.’[74] I note, however, that the High Court’s comments in this regard were made in the context of large commercial, corporate litigation. The facts of this case are more properly characterised in accordance with the High Court’s earlier observation, thus:[75]
It may be that some of the older cases concerned with vexation and oppression, in the sense in which those terms are understood in equity, are properly to be understood as grounded in principles of estoppel. Whether or not that is so, the equitable power to grant injunctions in restraint of litigation exists to serve equity and good conscience. It is not a power which involves a determination that proceedings instituted in a foreign court are vexatious or oppressive in the sense that they are an abuse of that court's processes or, even, in the sense that they should be stayed by the foreign court on forum non conveniens grounds.
[74] (1997) 189 CLR 345 at p.401.
[75] (1997) 189 CLR 345 at p.394.
Indeed, I have noted on numerous occasions already that the parties elected to have this Court determine the dowry issue. They should be, and, in my view, are bound by that election. In my view, this election conforms with the High Court statement, already quoted, in the following terms in the granting of anti-suit injunctive relief, which:[76]
... is a power the limits of which are determined by the dictates of equity and good conscience. Thus, for example, it may be that the bringing of proceedings with respect to one claim is properly to be seen, in the circumstances of the case, as an election either not to proceed on another claim or not to proceed in another jurisdiction, thus giving rise to an estoppel by conduct such that it would be unconscionable for that other claim to be pursued or for proceedings to be commenced in another jurisdiction. In cases of that kind an injunction may issue in restraint of the subsequent proceedings.
[76] (1997) 189 CLR 345 at p.394. (Internal references omitted.)
It only remains to consider, on discretionary grounds or otherwise, whether there is any reason not to grant the relief sought by Mr Singh, and or if the scope of the injunction sought is appropriate in the circumstances.
H. Relief
There are, in fact, two issues to address here: (a) whether a declaration can or should be made regarding the existence of the alleged Indian dowry; and (b) should an injunction issue, directed to Ms Singh, in the terms sought by Mr Singh?
Declaration: In relation to the declaration, I have previously indicated that, in my view, Ms Singh has not established that a dowry was in fact paid by her family to the family of Mr Singh. Her evidence was at such a level of generality and assertion, unsupported in any way by any other evidence, as to make it impossible for the Court to draw any conclusion that a dowry was in fact ever paid. In those circumstances, the question remains, however, whether a declaration can or should be made that a dowry does not exist? The only evidence in this regard are the large number of unchallenged affidavits filed by and on behalf of Mr Singh, which deny that a dowry was ever sought or paid.
At common law, there is long-standing authority that the power to grant declaratory relief is almost unlimited.[77]
[77] See, for example, the remarks of Lord Sterndale MR in Hanson v Radcliffe UDC [1922] 2 Ch 490 at p.507: “In my opinion ... the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion.” See also the High Court’s discussion in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at pp.581-582, where, among other things, the Court said (Mason CJ, Dawson, Toohey & Gaudron JJ): “... declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.” (Internal citations omitted.) In various places throughout the judgment in CSR v Cigna Insurance the High Court also referred to declaratory relief (see, for example, 189 CLR at pp.357 & 358; 386, 396 & 402. In this matter, Mr Singh contends, seemingly without too much opposition, that he risks – for a completely indefinite period - prosecution in India in relation to the alleged dowry. In my view, one’s freedom (or prosecution and possible incarceration) is no mere hypothetical or abstract question or issue.
Section 16 of the Federal Magistrates Act provides: “The ... Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.” This section mirrors, to a significant degree, s.21(1) of the Federal Court of Australia Act1976.
In Aussie Airlines Pty Ltd v Australian Airlines Lt, QANTAS Airlines Ltd & Federal Airports Corporation, Lockhart J (Spender & Cooper JJ agreeing) said of that section:[78]
For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:
The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: In Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties.
The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that (have) not occurred and might never happen': University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 per Gibbs J at 10; or if the Court's declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 per Mason J at 180 and per Aickin J. at 189.
The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Limited [1972] HCA 61; (1972) 127 CLR 421 per Gibbs J at 437; and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited (1921) 2 AC 438 per Lord Dunedin at 448.
Generally there must be a proper contradictor: Russian Commercial and Industrial Bank at 448; and Ainsworth per Brennan J at 596.
[78] (1996) 68 FCR 406 at p.414 [41].
In Jenkins v NZI Securities Australia Ltd,[79] the Full Court of the Federal Court (Beaumont, Gummow & Carr JJ) cautioned of the need for “careful scrutiny” before a negative declaration is made.
[79] (1994) 124 ALR 605 at p.616.
Accepting all the cautions to which I have referred, and the state of the evidence, the most cautious approach, in my view, is not to make any declaration regarding the dowry. It is appropriate, however, that there be a notation to the orders to the effect that Ms Singh has failed to establish that a dowry was either paid, received, requested or demanded by Mr Singh and his family. Such a notation will be made to the Orders.
Injunction: The terms of s.114 of the Act require that such order, under sub-section (1), be “proper”, or if granted under sub-section (3) that it be “just or convenient”, and if any terms be imposed, that they be “appropriate”.
In my view, an injunction should be granted as sought by Mr Singh under s.114(1)(a), which section refers to “the personal protection of a party to the marriage.” From what has been stated, there is sufficient evidence before the Court to be concerned that Mr Singh faces a risk of imprisonment if ever criminal proceedings are instituted in India. The fact that there is no time limit in which such proceedings may be instituted, and that there is a complete absence of clarity from
Ms Singh in relation to her intentions in relation to such proceedings, and that no such proceedings have been commenced, only adds to the need, in my view, to afford some personal protection to Mr Singh.[80]
I note again that both parties are Australian citizens, they reside and work/study here, with their son.
[80] See further, for example, In the Marriage of Wilmoth (1981) FLC ¶91-030, and the Full Court decision in Kemsley & Kemsley (1984) 10 Fam LR 125.
If, perchance, there is any impediment to the Court granting relief under s.114(1) of the Act, in my view, alternatively, the Court may otherwise grant relief of the kind sought under s.114(3).[81]
[81] I accept readily, but otherwise make no comment on, the observation of Dawson J in Re LSH; ex parte RTF (1987) 164 CLR 91 at p.121 where his Honour said: “There are obscurities surrounding the dichotomy between sub-ss.(1) and (3) of s.114....” Nor, because of the decision I have reached, do I need to discuss the reliance by the Respondent in these proceedings on In the Marriage of Kent & Pigot (1982) 8 Fam LR 537, in circumstances where that decision was disapproved of in certain respects by the High Court in Re LSH.
In this regard, I accept the submission on behalf of Mr Singh, namely, that the injunction acts in personam only in relation to Ms Singh, and does not, either in terms or otherwise, purport to affect the administration of justice in India. Nor does the relief sought formally affect any member of Ms Singh’s family taking whatever steps – preparatory or otherwise – they might deem appropriate in India in relation to ‘the dowry issue.’
Finally, because of the decision I have reached in favour of the Applicant husband, Mr Singh, it is unnecessary to consider the summary dismissal application sought by Ms Singh.
And also because of the decision I have reached, and notwithstanding the Applicant seeking an order in his favour for costs, in my view it is apt to seek written submissions within 21 days of the date of these orders in relation to costs.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 17th September 2010
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