Svehla & Lovric
[2023] FedCFamC1F 370
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Svehla & Lovric [2023] FedCFamC1F 370
File number(s): MLC 8704 of 2022 Judgment of: STRUM J Date of judgment: 15 May 2023 Catchwords: FAMILY LAW – ANTI-SUIT INJUNCTION – Where the parties own assets jointly, severally and through companies and trusts, in Australia, Country B, Country D and Country E – Where the applicant de facto wife seeks an anti-suit injunction preventing the respondent de facto husband from taking further steps in proceedings instituted by him first in time in Country B – Discussion of principles applicable to anti-suit injunctions restraining the pursuit of foreign jurisdictions – Where single-expert evidence is that any order made in Australia in relation to property in Country B will not be recognised or enforceable there – Application for anti-suit injunction dismissed insofar as it seeks to restrain Country B proceedings in relation to property there – Application for anti-suit injunction granted insofar as it seeks to restrain Country B proceedings in relation to property in Australia. Legislation: Family Law Act 1975 (Cth) ss 79, 90SF, 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 2.01, 4.01, 7.26
Cases cited: Attorney-General v Colney Hatch Lunatic Asylum (1868) LR 4 Ch App 146; [1868] UKLawRpCh 121
CSR Ltd v Cigna Insurance Australia Ltd (1997) CLR 345
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 293 ALR 384; [2012] NSWCCA 125
Henry v Henry (1990) 185 CLR 571; [1996] HCA 51
Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166
Lan & Hao (No 2) (2017) FLC 93-795; [2017] FamCAFC 175
News Digital Mida Pty Ltd v Mokbel & Anor (2010) 30 VR 248; [2010] VSCA 51
O’Brien v Shire of Rosedale [1969] VR 112
Obannon & Scarffe (2021) FLC 94-009; [2021] FamCAFC 33
Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225; [1883] UKLawRpCh 53
Re Applications by Chief Commissioner of Police (VIC) for Leave to Appeal (2004) 9 VR 275; [2004] VSCA 3
Societe Aerospatiale v Lee Kui Jack [1987] AC 871; [1987] UKPC 12
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Talwar & Sarai (2018) FLC 93-855; [2018] FamCAFC 152
Zaruba & Zaruba (2017) FLC 93-776; [2017] FamCAFC 91
Division: Division 1 First Instance Number of paragraphs: 110 Date of hearing: 22 March 2023 Place: Melbourne Counsel for the Applicant: Mr Levine Solicitor for the Applicant: Kelly & Chapman Counsel for the First Respondent: Ms Vohra SC with Ms Renwick Solicitor for the First Respondent: Taussig Cherrie Fildes Counsel for the Second Respondent: Dr Matta Solicitor for the Second Respondent: Marshalls and Dent and Wilmoth ORDERS
MLC 8704 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SVEHLA
Applicant
AND: MR LOVRIC
First Respondent
MS VLADEVA
Second Respondent
order made by:
STRUM J
DATE OF ORDER:
15 may 2023
THE COURT ORDERS THAT:
1.The application of the applicant, in her further amended Initiating Application filed 12 November 2022, for an anti-suit injunction restraining the first respondent from taking any further step in case no. … instituted by him against her in the Higher Court of City C in Country B, be dismissed insofar as those proceedings relate to any property (whether real or personal, and whether held by the applicant and/or the first respondent directly or by any company or trust in which they hold an interest or of which he and/or she is an eligible object) in the Country B.
2.Until further order, the first respondent be restrained from taking any further step in case no. … in the Higher Court of City C in Country B insofar as such proceedings relate to property (whether real or personal, and whether held by the applicant and/or the first respondent directly or by any company or trust in which they hold an interest or of which he and/or she is an eligible object) in the Commonwealth of Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Svehla & Lovric has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
BACKGROUND
The applicant de facto wife, Ms Svehla, and the first respondent de facto husband, Mr Lovric, were in a de facto relationship which, they agree, ended in January 2022. For ease of reference, they shall be referred to herein as the “wife” and the “husband” respectively.
There is a dispute which, for present purposes, is neither capable of, nor necessary for, determination, as to when their de facto relationship commenced. The husband and his former wife, Ms Vladeva (“former wife”), who is the second respondent, separated in 2001, after nearly two decades of marriage. The wife alleges that the husband and she commenced a de facto relationship in 2009. The husband alleges this is when they commenced a romantic but not exclusive relationship. He alleges that their relationship become more serious and mutually exclusive, and therefore a de facto relationship, in 2013–2014.
The husband and his former wife, both during their marriage and thereafter, until 2009, operated companies and trusts, through which they acquired real properties in Australia. They divorced in 2017 and, on 27 February 2018, they entered into a Financial Agreement. Notwithstanding that they were by then divorced, that agreement was nevertheless expressed to be pursuant to s 90C of the Family Law Act 1975 (Cth) (“Act”). The wife seeks to set aside the agreement aside, hence her joinder of the former wife as the second respondent. This aspect of the proceedings is not directly germane to the matter presently for determination.
There are assets owned jointly, severally and through companies and trusts, in Australia, Country B, Country D and Country E. They are helpfully and, it appears, uncontroversially, identified in the husband’s case outline filed 15 March 2023. The Australian assets, the total net value of which is estimated by the husband in the sum of $4,560,391, include two companies and a trust, which own real estate in this country, as well as superannuation. The Country B assets, the total net value of which is estimated by the husband in the sum of $5,017,378, include interests in real estate held by the husband and the wife personally, as well as through corporate entities there. The Country D and Country E assets, the total value of which is estimated by the husband in the sum of $620,405, appear to be relatively de minimis by comparison with those in Australia and Country B and are said by him primarily to compromise a one-half interest (together with his brother) in a real property in Country D, as well a vacant block of land owned by him in Country E, together with a one-half interest in another block of land there, held through a corporate entity. The values ascribed by the husband are merely estimates; however, at this stage, the wife has not joined issue therewith.
APPLICATIONS
On 18 July 2022, the husband commenced proceedings against the wife in the Higher Court in City C in the Country B for property settlement, in respect of property there (“Country B proceedings”). On 30 November 2022, after three previous unsuccessful attempts, the wife was successfully served with that initiating application, translations of which from Country B language into English are annexures “FS-04” and “FS-05” to the wife’s affidavit filed 12 November 2022. The husband deposes, in his affidavit filed 5 December 2022 at [61], that on 30 November 2022, she filed a response in the Country B proceedings and a translation thereof from Country B language into English (styled “Answer to Complaint”) was included in the Court Book (at 806–809) as a document relied upon by him and to which I was referred at the hearing. It appears from the said document that it was filed under protest.
On 8 August 2022, the wife instituted these proceedings, in summary, for property settlement in respect of all property, wherever situate, and for spousal maintenance (“Australian proceedings”).
By further amended Initiating Application filed 12 November 2022 in these Australian proceedings, the wife relevantly seeks, by way of final order, that “there be a just and equitable distribution of the available asset pool”. Further, she seeks, by way of interlocutory relief, inter alia, an anti-suit injunction that, until further order, the first respondent be restrained from taking any further step in the Country B proceedings.
By second further amended Response to Initiating Application filed 7 December 2022, the husband relevantly seeks, by way of final order, that “[t]here by [sic] such adjustment of the property and liabilities of the Applicant and First Respondent which are situate in the Commonwealth of Australia … as this Honourable Court deems appropriate”. Further, he initially sought, by way of interlocutory relief, inter alia that:
(a)he be at liberty to continue the Country B proceedings in respect of the property and/or liabilities of the wife and him which are situate outside of the Commonwealth of Australia (“European property”); and
(b)the “parties” (presumably the wife and he) be “restrained by injunction from taking any further steps in these proceedings … to obtain an adjustment between them of the Eurpoean [sic] property and the Australian proceedings be permanently stayed with regard to the European property”.
In relation to the first head of interlocutory relief sought by the husband, upon exploration with his Senior Counsel, she conceded that it was otiose. In the event the application for an anti-suit injunction succeeds, he will perforce be restrained from continuing those proceedings. In the event it fails, he will similarly perforce be at liberty to continue the Country B proceedings, without the need for any order of this Court granting him leave to do so. In the circumstances, Senior Counsel for the husband did not seek to proceed in this regard.
In relation to the second head of interlocutory relief sought by the husband, it is unusual in its terms. His Senior Counsel could not point to any authority in support of the proposition that a court can restrain parties, by injunction, from taking any further steps in proceedings in that same court. This is distinct from a court staying proceedings before it on the grounds of forum non conveniens, albeit to similar effect. See: CSR Ltd v Cigna Insurance Australia Ltd (1997) CLR 345 at 389–390. Upon exploration with his Senior Counsel, it appears that what the husband may, in fact, seek is a finding at trial that it is not just and equitable to alter interests in the European property, all the more so if an alteration thereof has already been effected in the Country B proceedings. Such a course is open to the Court. See: Zaruba & Zaruba (2017) FLC 93-776; Holland & Holland (2017) FLC 93-798. Whether that will be so must await trial. In the circumstances, Senior Counsel for the husband did not seek to proceed in this regard either, at the hearing before me.
At issue for determination presently, therefore, is whether or not an anti-suit injunction should be granted, as the wife seeks, restraining the husband from continuing the Country B proceedings.
In support of the relief sought by the wife, she additionally relies upon an affidavit filed by her on 12 November 2022, a Financial Statement filed on 8 August 2022, a case outline filed on 13 December 2022 and a further summary of argument filed on 16 March 2023.
In opposition to that relief, the husband additionally relies upon an affidavit filed by him on 5 December 2022, a Financial Statement filed on 5 December 2022 and a case outline filed on 15 March 2023.
I was assisted by a joint chronology prepared on behalf of the wife and the husband, as well as very much by a report prepared by a single expert, Ms F, a lawyer in Country B, dated 6 February 2023 and annexed to an affidavit affirmed by her on 14 March 2023 and filed on 15 February 2023. Ms F was not required for cross-examination and her evidence was therefore unchallenged.
The former wife was represented by counsel at the hearing of this application but did not seek to be heard in relation thereto.
The determination of this case turns upon the application of legal principles to narrow facts which, for the purposes thereof, are not in dispute.
For the reasons which follow, the wife’s application for an anti-suit injunction will be dismissed, insofar as she seeks to restrain the husband from taking any further step in the Country B proceedings in relation to property in Country B. I shall, however, grant the injunction insofar as the wife seeks to restrain the husband from taking any further step in those proceedings in relation to property within the Commonwealth of Australia. This is in circumstances where his Senior Counsel made a concession that he would not do so, in any event.
LEGAL PRINCIPLES
The principles governing applications for anti-suit injunctions are well settled. In CSR Ltd v Cigna Insurance Australia Ltd, the plurality of the High Court said (at 389–390) that the “question whether a dispute as to legal rights should be litigated in the courts of one country or those of another is one that permits of resolution, if resolution is possible, by one court staying its proceedings in favour of the other or by it granting an anti-suit injunction restraining a person amenable to its jurisdiction from commencing or continuing proceedings in that other country”. The plurality continued (at 390):
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.
After considering the test which governs a stay of proceedings in favour of proceedings in another country, the plurality continued (at 391–392):
The counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if “an estate is being administered ... or a petition in bankruptcy has been presented ... or winding up proceedings have been commenced ... an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets”. Similarly, as Gummow J pointed out in National Mutual Holdings Ply Ltd v Sentry Corporation, a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court.
The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court’s own proceedings or processes.
Quite apart from the inherent power of a court to protect its own processes, a court may, in the exercise of the power deriving from the Chancery Court, make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights. 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.
(Footnotes omitted)
Further, at 393, the plurality said:
One well established category of case in which an injunction may be granted in the exercise of equitable jurisdiction is that involving proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive.
Thus, it was said in Carron Iron Co v Maclaren that “[w]here [there is] ... pending a litigation here, in which complete relief may be had, [and] a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings”.
After citing Societe Aerospatiale v Lee Kui Jack [1987] AC 871 and Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225, the plurality continued (at 393–394):
Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. In particular, Peruvian Guano establishes that “double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]” does not amount to vexation or oppression.
More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co, if “complete relief” is available in the local proceedings.
The plurality said at 394:
Because the power to grant injunctions in respect of foreign proceedings which are vexatious or oppressive, in the sense described, derives from equity, it is not to be confined to the examples found in the decided cases. Rather, it is a power the limits of which are detennined by the dictates of equity and good conscience.
…
…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 detennination 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.
The plurality further said at 395:
Neither principle nor authority supports the view that the institution of foreign proceedings is, of itself, vexation or oppression according to the principles of equity. Similarly, neither principle nor authority supports the view that foreign proceedings become vexatious or oppressive in accordance with those principles in the event that the party against whom they are brought later commences proceedings with respect to the same subject matter in this country.
The plurality continued at 395–396:
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. Comity, relevantly, was explained by the Supreme Court of the United States in Hilton v Guyot in the following terms:
“‘Comity’, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.”
For this reason, the cases also emphasise that the power to grant injunctions in restraint of foreign proceedings should be exercised with caution. And that is so whether the injunction is sought in the exercise of the inherent or equitable jurisdiction.
At 397–398, the plurality said:
It will generally be the case that, where an anti-suit injunction is sought in the exercise of equitable jurisdiction, the matters relied upon for the grant of the injunction will or can be raised as issues for determination in the foreign proceedings in respect of which the injunction is sought. Because that is so, an interlocutory anti-suit injunction is vastly different from other forms of interlocutory relief.
Ordinarily, an interlocutory injunction preserves the subject matter of a proceeding pending its final adjudication. Where, however, the issue is whether a matter should be litigated in the courts of one country or of another and application is made for an interlocutory antisuit injunction by reference to considerations which will or may fall for determination in proceedings in that other country, the injunction, if granted, operates with the consequence that the matter in question is heard and determined in the court granting the injunction. Certainly that is so with respect to that aspect of the matter advanced in support of the injunction. Thus, an interlocutory anti-suit injunction is effectively a final determination as to where the matter or some particular aspect of it is to be litigated.
In a case in which an anti-suit injunction is sought on equitable grounds, the central question is whether the court to which application is made or some other court should hear and determine the matter in issue or, at least, that aspect of it involved in the application for injunction. And where the courts concerned are, respectively, an Australian court and a court of another country, there is involved in that question the further question whether the Australian court is an appropriate forum, in the Voth sense of it not being clearly inappropriate, for the determination of that matter. The fact that there is that further question, the preclusive nature of an interlocutory antisuit injunction and the importance of comity combine to require an Australian court to consider whether it is appropriate, in the sense that it is not clearly inappropriate, for it to determine the matter in issue before granting an anti-suit injunction.
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. …
It is theoretically possible that there will be cases in which the matter urged in support of the grant of an anti-suit injunction in the exercise of equitable jurisdiction cannot be raised in the foreign proceedings in respect of which the injunction is sought. Should a case of that kind occur, it would be our view that comity requires that, even in a case of that kind, an Australian court consider whether it is an appropriate forum for the resolution of the matter urged in support of the injunction before making interlocutory orders.
As already indicated, the considerations to which reference has been made, namely, comity and the preclusive effect of an interlocutory anti-suit injunction, require that an injunction not be granted by an Australian court in the exercise of equitable jurisdiction if it is a clearly inappropriate forum. If it is not a clearly inappropriate forum, it may be expedient to require the applicant to seek a stay or dismissal of the foreign proceedings. However, if that step is not considered expedient or desirable or if it is taken without success, the court must proceed in accordance with the practice which ordinarily applies with respect to interlocutory relief. In other words, it must then determine whether there is a serious issue to be tried and, if so, whether the balance of convenience favours the grant of an interlocutory injunction.
In cases where anti-suit injunctions are sought to protect the proceedings or processes of a court, no question arises whether that court is an appropriate forum for the resolution of that issue: it is the only court with any interest in the matter. Subject to that consideration, the appellants are correct in their contention that, before granting an interlocutory anti-suit injunction, an Australian court should consider whether it is an appropriate forum, in the Voth sense, for the resolution of the matter in issue or, if there be a difference, the matter advanced in support of the injunction.
At 399, the plurality further said:
It was held by this Court in Henry v Henry that, where proceedings are pending both in an Australian court and in a court of another country, it is necessary for the Australian court to have regard to the existence of the foreign proceedings in determining whether to stay its own proceedings on forum non conveniens grounds. In reaching that conclusion, the majority pointed out that, although it is not necessarily vexatious or oppressive 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 .. , that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words”.
The plurality continued, at 400–401:
In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum 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 proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging”.
Lastly, at 401, the plurality said:
Proceedings which are brought for the dominant purpose of preventing another party from pursuing remedies available in the courts of another country and not available in this country are “seriously and unfairly ... prejudicial [and] damaging”. They are, thus, oppressive in the Voth sense of that word.
The principles in CSR Limited v Cigna Insurance Australia Limited were considered and applied by the Full Court of the Family Court in Lan & Hao (No 2) (2017) FLC 93-795. The facts in that case were not dissimilar to those in the present case. As in this case, the husband first commenced proceedings in an overseas court, namely, in China. Subsequently, the wife commenced proceedings in the Family Court of Australia seeking orders for division of property pursuant to s 79 of the Act. However, unlike in the present case, the primary judge was faced with competing applications; the wife sought to restrain the husband from pursuing his claim against her in China, and the husband sought to restrain the wife from taking further steps in the property proceedings in the Family Court. In the alternative, the husband sought a stay of the proceedings in the Family Court pending final determination of the Chinese proceedings. Each party’s application before the primary judge failed. The primary judge concluded that Australia was “not a clearly inappropriate forum” for the determination of the wife’s claims because her claims to a division of property held by the husband in Australia could only properly be heard and determined in the Family Court. The injunction sought against the wife to restrain her from continuing the proceedings was refused because the evidence established that the Chinese Court would not deal with the property in Australia. The Australian proceedings could not be described as vexatious or oppressive. The injunction sought against the husband, in respect of the Chinese proceedings, was similarly refused because he was found to have a legitimate juridical advantage in proceeding in China and because there was no utility in granting the injunction in any event, as the order would not be recognised and enforced in China. The wife appealed against the primary judge’s refusal to grant an injunction restraining the husband from continuing to pursue his property proceedings in China. The husband did not appeal from the primary judge’s refusal to stay or to restrain the wife from continuing property proceedings in this Court. The wife’s appeal was dismissed.
The Full Court said at [36]:
It is useful at this stage to set out the principles that apply to injunctions seeking to restrain the pursuit of proceedings in foreign jurisdictions. It is important to note that the wife based her claim on the Court’s inherent or implied jurisdiction to protect its own process rather than the equitable jurisdiction to restrain unconscionable conduct or the unconscientious exercise of a legal right. It is also necessary to recall that the primary judge found that the proceedings in Australia had been commenced in a not inappropriate forum and should proceed. Thus, the focus was then firmly fixed on the proceedings in China.
Accepting (at [39]) that “the mere existence of proceedings into different countries at the same time does not, of itself, constitute vexatious or oppressive conduct”, the Full Court continued at [41]:
Thus a very significant issue in a party seeking an anti-suit injunction is whether the controversy between the parties is the same in both jurisdictions, whether or not complete relief is available in the local jurisdiction and whether there is nothing to be gained in the overseas proceedings or whether, on the other hand, the overseas proceedings will give rise to additional or other remedies.
However, the Full Court said (at [42]) that is not the end of the consideration. After referring to the decision of the majority in CSR Limited v Cigna Insurance Australia Limited, the Full Court said (at [43]) that the nature of the further matters to be taken into account was set out by the majority of the High Court in Henry v Henry (1990) 185 CLR 571 at 592–593, as follows:
Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
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.
(Citation omitted)
The Full Court continued at [44]–[46]:
44.It is important to note that this is not a balancing exercise. The majority in Regie Nationale des Usines Renault SA v Zhang (“Zhang”) said at 520 – 521:
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.
(Citation omitted)
45.Thus, in accordance with these statements of principle, we consider that the path her Honour should have taken was first to consider the nature of the proceedings in China to determine whether they raised the same or a different controversy, whether or not there was something to be gained in them, and whether there was complete relief available in Australia.
46.Ordinarily, if this consideration leads to the finding that it is vexatious and oppressive for the two proceedings to continue in parallel, in the sense that they would be productive of serious and unjustified trouble and harassment, or seriously burdensome, prejudicial or damaging, then the Court must consider the course to be taken in relation to these proceedings.
The Full Court proceeded to consider the nature of the relief that may be granted, saying at [47]–[49]:
47.Such a finding does not necessarily mean that the respondent should be restrained from pursuing the foreign proceedings. The appropriate course may be to consider a stay of the local proceedings, although as the authorities make abundantly clear, that will involve a consideration of whether the local court is a not inappropriate forum. That consideration must be undertaken in the light of the foreign proceedings and not divorced from them: CSR at 390. Other courses may be to grant a temporary stay of the local proceedings to allow factual issues to be determined in the other jurisdiction or for it to determine whether it has jurisdiction: Henry at 590 and 592.
48.There could also be a temporary restraint against the foreign proceedings whilst the local court determines all or part of the issues before it: CSR per Brennan CJ at 378.
49.It is at this stage that the matters for consideration raised in Henry, as quoted at [43] above, come into play.
In relation to what is meant by the phrase “the nature of the controversy”, the Full Court at [53] said that, as is apparent from CSR Limited v Cigna Insurance Australia Limited and Henry v Henry, the presence of different issues and parties in the two proceedings is not necessarily determinative. In Henry v Henry, the majority in the High Court (at 591–592) described the nature of the controversy in the following manner:
The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
However, the Full Court recognised (at [56]) that cases involving parallel proceedings in different jurisdictions turn very much on their own facts and that the facts in Henry v Henry were unusual.
The Full Court continued at [59] that:
…the starting point for the determination of proceedings of the present kind is whether complete relief is available in the local jurisdiction or whether there is something to be gained in the foreign proceedings. The issues as to whether the two jurisdictions would recognise or enforce the other orders are also relevant and significant.
Turning to the facts in Lan & Hao (No 2), the Full Court said at [62]–[64]:
62.The evidence in this case was clear. The Chinese Court would not deal with the property in Australia. Thus, there had to be proceedings in Australia to deal with the husband’s property. However, the Chinese Court would not recognise and enforce any orders made in Australia as to property in China.
63.Thus we consider that, in this case at least, the Court was entitled, if not obliged, to look at the two sets of proceedings themselves to see if they dealt with the same controversy or whether complete relief was available in one jurisdiction, and not determine the question simply by reference to some general descriptor of matrimonial proceedings.
64.We accept, of course, that the Court in Henry was well aware of the “inconvenience and embarrassment” that could be caused to the parties “if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of different outcomes” (at 590 – 591). However, the factual position in this case is so different to that in Henry that we consider justice could not be done by looking at the proceedings in very broad terms. …
In relation to any juridical advantage to be gained in the overseas proceedings, the Full Court said at [65]:
…it is necessary to note that “legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being “where the case may be tried ‘suitably for the interests of all of the parties and for the ends of justice’”” (Henry at 587, quoting Sim v Robinow (1892) 19 R 665 at 668).
The Full Court concluded at [71]–[72]:
71.…the appropriate starting point for the consideration of an antisuit injunction is to look at the nature of the two proceedings and to ask whether there is but one controversy, whether complete relief is available in the local jurisdiction and whether there is something to be gained in the foreign proceedings. This is because the answer to those questions will indicate, prima facie, whether having two sets of proceedings on foot is vexatious and oppressive.
72.Looked at in this light, there is something to be gained in the foreign proceedings – that is, something additional to the Australian proceedings – in that the husband could obtain an order for a payment of money in China which is enforceable in China. Whilst it is true that an Australian court could fashion orders that took account of any wrongful disposal by the wife of assets which otherwise would have been treated as joint property in China, that court could not make an order enforceable in China for the wife to pay money or transfer assets to the husband. This is because the Chinese courts would not recognise such an order. Thus, as the wife does not live in Australia and only has assets in China, the only prospect that the husband has of obtaining an enforceable order for the payment of money to him is to obtain that order in China.
In relation to the onus in an application for an anti-suit injunction, the Full Court said at [78]:
…the onus was upon the wife to persuade the court that the husband’s proceedings in China were unfairly burdensome. The husband, for his part, merely relied upon the existence of these proceedings which could not be pursued in Australia. The onus did not rest upon the husband to establish that he would succeed in these proceedings. Had the wife adduced evidence that indicated that the husband’s claim must fail, then the husband may have borne an evidentiary onus to rebut that evidence. The determination of that issue could well be a relevant and significant issue to take into account in deciding what relief to grant but it would not bear upon the issue as to whether the proceedings comprised the same controversy.
See also Talwar & Sarai (2018) FLC 93-855 and Obannon & Scarffe (2021) FLC 94-009.
EXPERT EVIDENCE
Unlike in Talwar & Sarai at [38] where, as the Full Court noted, “the primary judge did not have the benefit of expert evidence but rather, guided by the parties, conducted her own research into and evaluation of the relevant Indian statutes and authorities”, in the present case, the Court has the benefit of the evidence of Ms F, the jointly appointed single expert, who is an attorney-at-law in Country B. A number of questions were posed by the parties to, and answered by, Ms F. Neither party sought to cross-examine Ms F and her evidence was unchallenged. Whilst some aspects of her report therefore unfortunately were not able to be clarified for the Court, that has not precluded the determination of this matter.
In relation to how Country B courts determine property adjustment/division between former de facto spouses, the expert evidence of Ms F is that the Family Law of Country B (“the Family Law”) defines the joint property of de facto partners as the property they acquired through work during their de facto relationship. Only the joint property of the de facto partners can be subject to division. Separate property cannot be subject to division, namely, property acquired by a de facto partner before the commencement of cohabitation, as well as property acquired through gift, inheritance or other legal transaction. However, the Family Law recognises the concept of “increase of value” of separate property, such that if, during the period of de facto cohabitation, there has been a significant increase in the value of the separate property of one of the parties, the other party has the right to a share in such property in proportion to his/her contribution.
In relation to how the Country B courts take into account the financial resources of de facto spouses, trust assets, self-managed superannuation funds and the ownership of real and/or personal property outside of Country B, the expert evidence of Ms F is that:
… the subject of judicial division of property of de facto partners can only be joint (common) property (property acquired by de facto partners through work during their de facto relationship). The competent court in each specific case determines whether the property that is the subject of division represents joint property or not. In other words, any financial assets of the de facto partners, trust assets, real estate rights and other property can be subject to division only if it is proven during the court proceedings that such were acquired through joint work during de facto cohabitation, i.e. that they are in the common property regime.
(Emphasis in original)
It is unclear how this statement is to be reconciled with the earlier evidence of Ms F that the Family Law recognises the concept of “increase of value” of separate property, such as to make the increase divisible between the parties. Further, although she was asked how the Country B courts take into account, inter alia, the financial resources of de facto spouses, her answer refers to “financial assets”. There is no evidence whether or not the Family Law, and the Country B courts exercising jurisdiction pursuant thereto, distinguish between property and financial resources, as is the case in Australia under the Act.
With regard to the territorial jurisdiction of the Country B courts, the expert evidence of Ms F is that:
… if in property disputes between spouses (i.e.: de facto partners) the competence lies with the domestic court because the property of the spouses (i.e. de facto partners) is located in [Country B], or because the plaintiff at the time of filing the claim has a domicile or residence in [Country B], the territorial jurisdiction lies with the court in whose territory the plaintiff has a domicile or residence at the time of filing the claim (Article 49 of the Civil Procedure Law). On the other hand, the court in whose territory the immovable property is located has exclusive territorial jurisdiction to adjudicate in disputes about property rights and other real rights to immovable property (Article 51 of the Civil Procedure Law).
(Emphasis in original)
Again, it is not readily apparent what is meant by the first sentence of the passage quoted immediately above. However, importantly for present purposes, I read the second sentence to mean that, in respect of the real property of the husband and the wife situated in Country B, the courts thereof have exclusive jurisdiction in relation thereto. Accordingly, whilst this Court has jurisdiction over the parties in personam, it does not have jurisdiction over their property in rem, and any orders made by this Court will not be recognised there. Neither party submitted to the contrary.
In relation to the jurisdictional basis for the for the Country B proceedings, Ms F reports, inter alia, that:
… based on Article 46 Paragraph 1 of the Law on Resolving Conflict of Laws with Regulations of Other Countries, the jurisdiction of the court in [Country B] exists if the respondent has a domicile in [Country B]. Paragraph 3 of the same Article 46 stipulates that if the litigants are citizens of [Country B], the jurisdiction of a court in [Country B] exists even when the respondent has residence in [Country B].
Again, what is meant by Ms F’s statement that “if the litigants are citizens of [Country B], the jurisdiction of a court in [Country B] exists even when the respondent has residence in [Country B]” is unclear. However, in the present case, the husband, who is the applicant in the Country B property proceedings, is a citizen of both Australia and Country B, and the wife, who is the respondent therein, is a citizen of Country B and a permanent resident of Australia. Therefore, from my reading of the whole of Ms F’s evidence (and it was not submitted to the contrary), I accept that the Higher Court in City C has jurisdiction in the Country B property proceedings.
Ms F continues, stating that:
The basic conflict solution according to the Law on Resolving Conflict of Laws with Regulations of Other Countries is lex rei sitae - the law of the place where a property is situated. This means that the applicable law shall be the law of the country in whose territory the property being the subject-matter of the disputed real right [sic] is located.
Ms F was asked to advise whether, in Country B, a de facto spouse can claim spousal maintenance from the other party. The wife, by her further amended Initiating Application in these Australian proceedings, seeks orders for spousal maintenance. Ms F’s answer is in the affirmative. However, she states that the claim must “be filed within one year from the date of termination of cohabitation of de facto partners, i.e. from the date when the last factual contribution on the account of maintenance was made”. Although not presently germane, viewed through the prism of the Act, those two dates are not necessarily the same.
In relation to the Country B property proceedings, Ms F advises that, assuming the wife participates therein, the expected timeframe for the conclusion of the litigation on a contested basis, including any appeal(s), ranges from between three to seven years. Further, as I read her report, it appears that the various avenues for alternative dispute resolution are voluntary, rather than compulsory.
Importantly, for present purposes, Ms F advises that court orders in Country B property proceedings are made in rem, rather than in personam.
Asked whether, in the event this Court makes orders for the adjustment of Country B property between the parties (being orders in personam and not in rem), such orders are enforceable in Country B, Ms F’s response is unequivocal:
No, they are not.
A foreign court decision shall not be recognized if a court of [Country B] has exclusive jurisdiction in that matter (Article 89 of the Law on Resolving Conflict of Laws with the Regulations of Other Countries).
In proceedings concerning claims under property law, a court of [Country B] shall have jurisdiction if the property of the respondent or the item sought by the action is located in the territory of [Country B] (Article 54 of the Law on Resolving Conflict of Laws with the Regulations of Other Countries).
A court of [Country B] shall have exclusive jurisdiction in proceedings the object of which is the right of ownership and other rights in rem, if the immovable property is located within the territory of [ Country B] (Article 56 of the Law on Resolving Conflict of Laws with the Regulations of Other Countries).
In proceedings which have as their object property relationships between spouses (ie. de facto partners) concerning the property located in [Country B], a court of [Country B] shall have jurisdiction even when the respondent does not have a domicile in [Country B], and the plaintiff has a domicile or residence in [Country B] at the time of filing the claim (Article 59 of the Law on Resolving Conflict of Laws with the Regulations of Other Countries).
As I raised with counsel at the hearing, this last paragraph seems to suggest that the plaintiff in the Country B proceedings (in this case, the husband) must have “a domicile or residence in [Country B] at the time of filing the claim”. Although he is a dual Australian and Country B national, it is unclear whether he is domiciled or resident in Country B. Indeed, in his affidavit filed 5 December 2022 at [40], he deposes that in or about late 2019, the wife, her daughter and he moved to Australia. However, the Country B proceedings appear to have been accepted for filing by the Court there, and no objection to jurisdiction appears to have been taken by the wife on this basis.
Ms F continues:
Furthermore, and considering the existence of litigation before the Higher Court in [City C], please be advised that a foreign court decision will not be recognized if a court or other authority of [Country B] has rendered a final decision in the same matter. The court shall stay the recognition of a foreign court decision if proceedings involving the same cause of action between the same partics have been brought in a court of [Country B], until such time as the original proceedings are completed. (Article 90 of the Law on Resolving Conflict of Laws with the Regulations of Other Countries).
Again, without the benefit of cross-examination of Ms F, and the ability to clarify her expert opinion, it is difficult to understand why the Country B court would stay the recognition of a foreign Court decision if it will not be recognised there in any event. However, that may be a distinction without a difference.
The evidence of Ms F is that, in the event this Court makes an anti-suit injunction restraining the husband from continuing the Country B proceedings, it will not be enforceable in Country B. Of course, such an order could be enforced in personam against him in Australia by this Court.
In relation to whether the Country B courts have the power to recognise and declare third-party property interests, including the interests of other persons or companies, the evidence of Ms F is unclear because, as she says: “If we understand the question correctly, it is possible that this is a legal institution and a procedural action that exist in Australian legislation, but not in [Country B] legislation”. However, it is tolerably clear from her attempts to answer the question that the Country B courts do provide for some third-party participation in litigation there. She advises, inter alia, that:
·The Civil Procedure Law recognises the participation of third parties in litigation in the capacity of intervenors (namely, as co-litigants), being persons whose legal interest is that one party should be successful in a lawsuit between other parties.
·If the legal effectiveness of the judgment also has a legal effect upon the intervenor, the intervenor assumes the status of a “sole co-litigant” (albeit that such term appears to be a tautology).
·The Civil Procedure Law also provides for the possibility of notifying a third party about the litigation, “in order to constitute a specific civil legal effect” [sic].
Ms F was asked to advise what legal test is applied in Country B to determine whether or not a Country B court should remain seized of litigation when an application is brought to stay that litigation in favour of an overseas jurisdiction. She states that “it is clear that any possible objection to jurisdiction of the court of [Country B], even if timely [sic] made at this stage of the proceedings, would be overruled is unfounded”. She continues:
The Law on Resolving Conflict of Laws with the Regulations of Other Countries resolve the issue of international lis pendens in such a way that the previously initiated litigation abroad has certain procedural effects - effect, i.e. the legal consequence of international lis pendens is that the court in Country B will discontinue the proceedings. However, this discontinuation of the proceedings will not follow ex offo [sic] and unconditionally. The proceedings shall not be discontinued ex officio, but the court will only do so at the request of the party. The objection to international lis pendens, i.e. the motion for discontinuation of the proceedings, could be made at the preliminary hearing at the latest, i.e. at the first main hearing, before consideration of the merits, and if this is not done, it will be deemed that the party had waived the right to request discontinuation. In order for the court to accept the objection to international lis pendens, Article 80 of the Law on Resolving Conflict of Laws with the Regulations of Other Countries stipulates that three additional conditions must be met, namely:
1)That proceedings were previously instituted before a foreign Court first (we emphasise - does not include litigation);
2)That these are proceedings in which [Country B] courts have no exclusive jurisdiction;
3)That there is reciprocity between [Country B] and the country where the proceedings were previously initiated.
The cited law links lis pendens to the time the proceedings were initiated, which according to the provisions of the Civil Procedure Law is linked to the filing of the claim with the court. It is indisputable that the term “initiation of proceedings”, when it refers to a claim filed with a [Country B] court, is determined lex fori, which implies the time when the claim was filed with the court.
This implies that the objection to international lis pendens, i.e. the motion for discontinuation of the proceedings before the court in [Country B], due to the proceedings being on foot in Australia, would not be accepted, because legal conditions for such have not been met, i.e. (i) the proceedings in Australia were not initiated before the proceedings had been initiated in [Country B] and (ii) in proceedings the object of which is the right of ownership and other rights in rem, courts in [Country B] have exclusive jurisdiction.
The evidence of Ms F in this regard is unequivocal and unchallenged. Whilst, in respect of one of the additional conditions to which she refers, namely, “[t]hat proceedings were previously instituted before a foreign Court first”, it is unclear what she means when she emphasises that this “does not include litigation”, it matters not. This is because these Australian proceedings were instituted after, rather than before (as required), the Country B proceedings. Insofar as counsel for the wife sought to argue that the invocation by her, in February 2022, of the pre-action procedures pursuant to r 4.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Rules”) somehow constituted the institution of these proceedings, prior to the Country B proceedings, that is manifestly incorrect. One need look no further than r 4.01(1) of the Rules, which relevantly provides that “before starting a proceeding, each prospective party to the proceeding must comply with the pre-action procedures” (emphasis added). Further, r 2.01(1) relevantly provides that: “Unless otherwise provided in these Rules, a proceeding must be started by filing an application for final orders in accordance with the relevant approved form”. Accordingly, there is no merit whatsoever in that argument and it is difficult to understand how it could be made.
Lastly, Ms F confirmed that witnesses may appear to give evidence in Country B proceedings by means of video-conferencing. She states:
By passing a decision, the court may decide, ex officio or at the request of the parties, that a witness be examined through videoconferencing, using audio or optical recording devices. The court can always summon the witness who statement was recorded to confirm his/her testimony in person before the court at the hearing (Article 245 of the Civil Procedure Law).
Therefore, a request is required from the party who proposed the respective witness for examining this witness via video conferencing, with providing reasons why the witness cannot appear in court to be examined in person at the hearing, and it can be unequivocally established that the witness has knowledge of some relevant disputed facts.
The court can also reject such a request from the party.
Relevant as this may be, perhaps more so in other cases, the evidence is that the wife and the husband have lived variously in, and they have travelled between, Australia and Country B.
In the circumstances, Ms F concludes and helpfully “recommends” as follows:
Considering (i) the procedural propositions of the parties that were presented in the proceedings before the court in Australia and (ii) the fact that before the proceedings before the court in Australia were initiated (by filing a claim), the proceedings had been initiated before a court in [Country B], and particularly in view of the respective answers given based on the analysis of the legislation of [Country B] (primarily from the field of private international law), namely:
1)That lex nationalis of persons who live, or have lived in de facto relationship (the law of the country of which they are citizens) is applicable to the property relationships of de facto partners, i.e. that the law of the [Country B] is the applicable law for the case in question;
2)That the basic conflict solution for determining the jurisdiction of the domestic court and the application of the domestic law is lex rei sitae - the law of the place where a property is situated.
3)That a foreign court judgment shall not be recognized if the court of [Country B] has exclusive jurisdiction in the respective matter,
4)That in proceedings concerning property law claims, a court of [Country B] shall have jurisdiction if the property of the respondent or the object sought in the lawsuit is located in the territory of [Country B]; a court of [Country B] shall have exclusive jurisdiction in proceedings the object of which is the right of ownership and other rights in rem, if the immovable property is located within the territory of [Country B].
5)That the objection to international lis pendens, i.e. the motion for discontinuation of the proceedings before the court in [Country B], because the proceedings are on foot in Australia, would not be accepted, because the legal conditions for such have not been met,
I suggest that the dispute concerning the property relationships between the parties be resolved before a court in [Country B], applying the laws of [Country B], and especially in respect of joint property of the de facto partners located in [Country B], in which case, according to the laws of [Country B], the jurisdiction of the domestic court is exclusive, as well as the application of [Country B] law as the governing law.
SUBMISSIONS
As referred to above, at the hearing before me, the wife relied upon a case outline filed on 13 December 2022 (“earlier submissions”), as well as a further summary of argument filed on 16 March 2023 (“later submissions”). The earlier submissions were filed prior to receipt of the report of Ms F, which is dated 6 February. In the later submissions, it is nevertheless stated that the wife also relies upon her earlier submissions. However, in circumstances where the earlier submissions were prepared without the benefit of Ms F’s expert evidence, they are of limited relevance or assistance to the Court. Nevertheless, some matters in the earlier submissions require comment. Further, although both the wife’s earlier submissions and her later submissions are replete with passages cited from authorities, there is little discussion in either of those submissions of the application of the principles therein to the particular facts of this case. Moreover, it was not made clear by counsel for the wife, either in his written or his oral submissions, whether her application for an anti-suit injunction is founded upon the inherent power of the Court to protect its own processes or upon the power of the Court to make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights
It is submitted, in the wife’s earlier submissions, under the heading “forum non convenience” [sic], at [2], that:
The Australian Courts have jurisdiction with respect to the parties and their relationship but the [Country B] Courts may not have any jurisdiction with respect to the parties or their relationship1 as neither party lives or resides in [Country B]. … The [Country B] Courts would have no jurisdiction in relation to the Second Respondent who was joined as a necessary party to the Australian proceedings.
(Footnotes omitted)
In relation to the first proposition, the subsequent evidence of Ms F now makes it clear that the Country B courts do have jurisdiction with respect to the husband and the wife and their de facto relationship, notwithstanding that neither party lives or resides in Country B.
In relation to the second proposition, it matters not that the Country B courts may not have jurisdiction in relation to the former wife, who was joined as a party to these Australian proceedings by the wife. There is no application by the husband (or, indeed, the former wife) for the Australian proceedings to be stayed on the ground of forum non conveniens. There is no suggestion that these proceedings will not proceed in this Court, albeit that the husband has flagged that, at trial, he will submit that it is not just and equitable to make any alteration of interests in property (whether in Australia or in Country B) under s 79 of the Act, as required by sub-s (2) thereof. He may or may not be successful in this regard.
Insofar as it is submitted, in the wife’s earlier submissions at [5], that the “[Country B] Courts could only make orders in respect of the [Country B] property (which does not include the property in [Country E] or Australia), whilst the Australian Courts can make orders in respect of the relationship, the binding financial agreement, and all of the property” and that there “is no advantage to litigating in [Country B], save that the Australian Courts may not be able to make any enforcement orders in relation to the [Country B] properties that are not owned by Australian companies or trusts”, that is an over-simplification and is only partially correct. Whilst this Court can make orders against the parties in personam in relation to their property in Country B, it cannot make orders in rem in relation thereto. That is the advantage of litigating in Country B.
It is further submitted in this regard, in the wife’s earlier submissions at [11], that:
The Australian Court may only be able to enforce their orders against the overseas property (which are not owned by an Australian trust or company) but that does not mean that the overseas property are [sic] not taken into account. The overseas property that are [sic] owned by an Australian trust or company can be transferred, by orders transferring ownership and control of the Australian trust or company. The Australian Court could also make an order transferring all of the Australian property to the [wife] in preference to an order transferring overseas property to her.
The submission that this Court “may only be able to enforce their orders against the overseas property” importantly omits the qualification that such enforcement could only be in personam and not in rem. Insofar as it is submitted that this Court can take into account the overseas property but make an order transferring all (or more) of the Australian property to the wife, that too is an over-simplification of the matter. The husband, by the Country B proceedings, seeks to separate and adjust the wife’s and his property interests in that country. Further, at trial in the Australian proceedings, this Court may find that, contrary to the husband’s contention, it is just and equitable to make an order adjusting the wife’s and his interests in property but that it is not just and equitable to award more of the Australian assets to her in lieu of the Country B assets.
The husband also contends that if this Court were, at trial, to order the wife to transfer her interests in property in Country B to him, in exchange for a larger share of the Australian property, and she fails to do so, she may nevertheless still have insufficient property here against which to enforce such breach. Whether or not that is so is presently speculative and must await the determination of these Australia proceedings.
It is submitted, in the wife’s earlier submissions at [12], that the “Australian Courts can grant an anti-suit injunction to prevent its processes being abused or because the Country B proceedings has [sic] the capacity to interfere with the Australian proceedings or to prevent the unconscionable exercise of the [husband’s] rights in the exercise of the Australian Courts equitable jurisdiction”. However, the wife does not there demonstrate how it is that this Court’s processes are being or may be abused; that the Country B proceedings have the capacity to interfere with these proceedings; or that the husband is exercising or may exercise his rights unconscionably.
Similarly, it is submitted in the wife’s earlier submissions at [13] that the “Australian Courts may grant an anti suit injunction in the exercise of its equitable jurisdiction if there are proceedings initiated in a [Country B] court, that can be regarded as being vexatious or oppressive, as there is complete correspondence between the Australian proceedings and the [Country B] proceedings or that complete relief is available in the Australian proceedings, and the [Country B] proceedings are unnecessary”. However, the subsequent evidence of Ms F makes it clear that there is not complete correspondence between the two proceedings and that complete relief is not available in these Australian proceedings. Merely because this Court can make orders binding on the parties in personam in Australia, in relation to property in Country B, albeit that they are incapable of being enforced in rem there, does not mean that complete relief is available in these proceedings, nor does it mean that there is complete correspondence between these proceedings and the Country B proceedings, such as to render the latter proceedings vexatious or oppressive.
Lastly, it is submitted in the wife’s earlier submissions at [16] that the “Australian Courts could regard the [Country B] proceedings as being vexatious or oppressive because it was [sic] undertaken for the dominant purpose of interfering with the Australian proceedings. The [Country B] proceedings were initiated on 20 July 2022, which was after the commencement of the pre-litigation procedures in February/ March 2022 …”. I have addressed this submission above and found it to be wrong. The Country B proceedings manifestly pre-date these Australian proceedings, notwithstanding the earlier commencement of the pre-litigation procedures required by the Rules. Those procedures were and are, as their name suggests, pre-litigation.
Turning to the wife’s later submissions, dated and filed 16 March 2023, more than a month after receipt of Ms F’s report, she correctly submits at [3], that the “[Country B] proceedings and the Australia proceedings both deal with the breakdown of the … de-facto relationship” between the husband and the wife. She refers to the passage from the judgment in Henry v Henry at 591–592, which was cited by the Full Court in Lan & Hao (No 2) at [55], where the majority of the High Court said that:
The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
Neither party submitted that a distinction should be drawn between a marital relationship and a de facto relationship. The wife boldly submits, in her later submissions at [5], that the “[Country B] proceedings are more properly characterised as arising out of the joint property pool as opposed to the de facto relationship”. However, she failed to particularise or explain why that is said to be so – either in those submissions or in oral submissions. This is especially surprising given the passage from the judgment in Henry v Henry upon which she relies. Further, the husband’s initiating application in the Country B proceedings, a copy of which forms part of the evidence upon which she relies, makes it abundantly clear that it is premised upon their de facto relationship. It states, inter alia, that:
·“The Plaintiff [husband] and the Defendant [wife] are in a life union as de facto partners.”
·“The Plaintiff and the Defendant have been in an emotional relationship since the summer of 2007.”
·In relation to the apartment at [G Street], [City C], purchased in 2015: “For emotional reasons and the blind attachment towards the Defendant, the Plaintiff agreed that the said apartment be bought in his name and in the name of the Defendant …”.
·In relation to the apartment at [H Street], [City C], purchased in 2018: “For emotional reasons, love and in order to show his affection and commitment and at the request from the Defendant, the Plaintiff agreed that the said apartment be bought in his name and in the name of the Defendant …”.
·In relation to the company “[J Company]”, incorporated in [Country B] in 2018, it was founded “to enable the Defendant to have some sort of income” and that the wife “was only fictitiously registered as a co-owner with a 50% share in the said company”.
·The husband’s claim is brought pursuant to, inter alia, the Family Law of Country B.
In all the circumstances, it is difficult to understand how it can properly be submitted, and I reject the submission, that the Country B proceedings are more properly characterised as arising out of the “joint property pool”, as opposed to the de facto relationship between the husband and the wife. But for their de facto relationship, there would be no “joint property pool” (albeit that the common use of that term may well no longer be appropriate, given the dicta of the High Court in Stanford v Stanford (2012) 247 CLR 108 at [35]–[46]).
In the wife’s later submissions at [4], she refers to the evidence of Ms F and asserts that “the provisions of the Country B Family Law will apply to divide the joint property” of the husband and the wife, but that their separate property “is not subject to division”. That is not entirely accurate. It will be recalled that the expert evidence is that, with respect to separate property, Country B law recognises the legal concept of “increase of value” thereof, such that if during the period of cohabitation there has been a significant increase in the value of the separate property of one of the de facto partners, the other de facto partner has the right to seek a share in such property in proportion to his/her contribution.
At [6] and [8] of her later submissions, the wife lists the joint property “according to the [husband’s] initiating application in the [Country B] Court” (totalling AU$790,000) and submits that:
The [Country B] proceedings expressly excludes [sic] the following properties and entities on the basis that it is not joint property:
a) [K Company] (the First Applicant’s [sic] share is worth $585,000);
b) [L Company] (the First Applicant’s [sic] share is worth $3,150,000);
c) [M Property] (the First Applicant’s [sic] share is worth $281,000).
Those values are derived by the wife from the husband’s Financial Statement filed 22 March 2023, and also appear in the list of the parties’ legal and equitable interests in assets set out in his written submissions. She asserts at [7] of her later submissions that the “[Country B] proceedings deal with a small subset of the property pool that would be recognised under Australian law”. That submission ignores several matters. First, the husband, in both his affidavit filed 5 December 2022 and his Financial Statement filed 24 February 2023, as well as in his written submissions, particularises the wife’s and his “legal and equitable interests in assets and liabilities situated outside the Commonwealth of Australia” (emphasis in original) as being far more extensive than that contended by the wife and ascribes a value thereto totalling $5,017,378. For present purposes, I take that to be an admission against interests by him. Further, as discussed above, the submission ignores the evidence of Ms F that Country B law includes the legal concept of “increase of value” to separate property. Moreover, the wife’s response filed in the Country B proceedings, under cover of objection, states that she “fully contests the grounds and the amount stated in the particulars of claim” and that:
Both apartments claimed by the particulars of claim, including the assets belonging to the above companies, the parties acquired with joint funds and during the term of common-law marriage. The real estate registered in the name of the litigants was deliberately registered as the joint property of common-law partners, and based on the previous agreement regarding the selection and purchase of the real estate the defendant was acquainted with all business deals of her common-law partner, and she partially participated in the same and was familiar with the assets owned by [Mr Lovric] as his separate assets, which he bequeathed or intended to bequeath to his sons from his previous marriage.
No explanation was proffered by the wife as to why she has not made any claim in relation to such separate property, on the basis of “increase of value”.
Similarly, insofar as the wife submits, at [11] of her later submissions, that the “[Country B] proceeding cannot grant relief in respect of [Country B] property that is not joint property, and thus cannot be regarded as being able to grant relief”, that submission again ignores the evidence of Ms F that Country B law includes the legal concept of “increase of value” to separate property, in respect of which the wife might make a claim in those proceedings if, during the de facto relationship, there has been a significant increase in the value of such property.
The wife submits, at [12] of her later submissions, that this Court should grant the application for an anti-suit injunction “as there is nothing to be gained in the [Country B] proceeding continuing due to the limited value of the joint property that will be divided according to [Country B] law”. I have already referred to the wife’s possible rights in relation to the husband’s separate property in the preceding paragraphs. Further, on the husband’s case, the total value of the legal and equitable interests of the wife and him in property (joint and separate) in Country B is far from limited, as the wife submits; it exceeds $5 million. Additionally, this submission is contradicted by the wife in the immediately following paragraph of her later submissions where (at [13]) she correctly acknowledges that this Court “cannot make orders in rem against the [wife] and/or the [husband’s] property in [Country B]”. However, insofar as she qualifies the property in Country B against which orders cannot be made in rem by this Court as being property “that is not owned by an Australian trust or Australian company”, that is speculative, as there is no evidence by Ms F to this effect. The solution proposed by the wife is that this Court “can make orders against the [husband] in personam, if necessary, and can make a far larger adjustment of the Australian assets in her favour to take into account the [Country B] property”. However, that solution is, in fact, no solution at all at this stage of these proceedings; it is similarly speculative, as I do not and cannot know at this juncture whether it would be just and equitable to do so.
The husband, who opposes the wife’s anti-suit injunction in respect of the Country B proceedings instituted by him, submits (at [10] of his summary of argument in his Case Outline) that she “has a claim to substantial assets in [Country B]” and that “the total assets available for adjustment in Country B exceed those in Australia”. I take these two statements to be further admissions against interests by him for present purposes. He estimates the value of the wife’s and his legal and equitable interests in property in Australia to be in the order of $4.5 million and in Country B to be in the order of $5 million. The property in Country B is both joint and separate and includes a 25 per cent interest in a property at N Street, City O, held through the company L Company, which appears to be separate property. His case is that the property available for division in Country B is greater than that contended by the wife, in that it includes his separate property too, and that the wife has a claim to substantial assets (joint and separate).
Further, the husband correctly points to the fact that, in respect of the jointly owned property in Country B, the litigation there is necessary for the parties to separate their interests therein. He concedes that Australia is not a clearly inappropriate forum, primarily due to the wife’s claim to set aside the Financial Agreement between his former wife and him. In my view, that is not the only reason for which Australia is not a clearly inappropriate forum; the assets here include superannuation interests in the order of $2.15 million, real property in this country estimated by him to be valued in excess of $2.3 million and held through the Lovric Family Trust, as well as real property in this country estimated by him to be valued in excess of $1.5 million and held through P Pty Ltd in which he has a 98 per cent interest. In the circumstances, it is difficult to see how, prima facie, Australia might be contended to be a clearly inappropriate forum but for the third party claim.
The husband submits that, in circumstances where the Country B proceedings were commenced prior to the Australian proceedings (which I have already found to be the case, contrary to the wife’s submission) and the Country B courts have exclusive jurisdiction in respect to the property of the husband and the wife in Country B and will not recognise an order of this court with respect to the Country B assets and or staying the Country B proceedings, those proceedings should continue. Whilst it appears unusual, from an Australian legal perspective, the unchallenged evidence of Ms F is that, even if an anti-suit injunction were made by this Court against the husband, which would be enforceable against him in personam in Australia by this Court, he could not discontinue the Country B proceedings. This is because the legal conditions therefor in that country have not been and cannot now be met, namely, the Australian proceedings were not initiated before the Country B proceedings and in proceedings, the object of which is the rights of ownership and other rights in rem, the Country B courts have exclusive jurisdiction. Accordingly, there would be no utility in this Court making an anti-suit injunction; irrespective, the Country B courts will remain seized of the litigation in relation to the assets there. It is well settled that courts should not make orders which are futile (see Re Applications by Chief Commissioner of Police (VIC) for Leave to Appeal (2004) 9 VR 275 at [45]; Attorney-General v Colney Hatch Lunatic Asylum (1868) LR 4 Ch App 146 at 154; ; O’Brien v Shire of Rosedale [1969] VR 112 at 118; Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 293 ALR 384 at [77],[79]; News Digital Mida Pty Ltd v Mokbel & Anor (2010) 30 VR 248 at [94]). On one view, that would be a sufficient basis to dismiss the wife’s application.
The husband submits that the continuation of both the Australian proceedings and the Country B proceedings would not be “uncommon in this Court” and that, while it may not be the course desired by the wife, it is one that is necessary. I agree that, in all the circumstances, the continuation of both proceedings is necessary; however, I do not agree that it is not uncommon. Rather, consideration of the cases cited reveals that it is not common but that does not detract from the necessity of such a course in this case.
Unlike the wife, the husband addresses the two bases for a court to restrain a party from pursuing proceedings in a foreign jurisdiction: (a) the implied jurisdiction to prevent the court’s processes being abused and to protect the integrity of the proceedings before the Court; and (b) the court’s jurisdiction to restrain unconscionable conduct or the unconscionable exercise of legal rights, if the existence of the two proceedings is vexatious and oppressive. See CSR Limited v Cigna Insurance Australia Limited and Henry v Henry. However, as the High Court held in the former case and as the Full Court of the Family Court held in Lan v Hao (No. 2), the mere existence of proceedings in two different countries at the same time does not, of itself, constitute vexatious or oppressive conduct. Rather, a foreign proceeding can be deemed vexatious or oppressive if there is nothing which can be gained by this, over and above what can be gained in the local proceedings.
In relation to the factors which a review of the case law recommends should be considered in determining whether or not to grant an anti-suit injunction, the husband submits as follows, and in the following order.
First, as to the connection of the parties and their de facto relationship with each of Australia and Country B, and the issues on which relief might depend in those jurisdictions, he submits that it is “unquestionable” that the dispute between the husband and the wife, arising out of their de facto relationship, has a greater connection with Country B than Australia. I do not agree that this is unquestionably so; rather, on the evidence, I find that their dispute is, on balance, equally connected to both jurisdictions. However, in the circumstances of this case, that is not determinative of the issue I have to decide. This is all the more so in circumstances where the husband has not cross-applied for these proceedings to be stayed on the ground of forum non conveniens; indeed, he has expressly disavowed this to be so.
In support of his contention, relies (inter alia) upon the following matters:
(a)The de facto relationship of the husband and the wife (whether it commenced in 2009, as she contends, or in 2013/2014, as he contends) was conducted in Country B until September 2019, when they relocated to Australia, where it broke down in January 2022. He points to the wife’s evidence that, prior to their relocation, she only visited Australia on approximately five occasions. Whilst, on either view, the majority of their relationship was conducted in Country B, it is not suggested that it was not ongoing prior to September 2019 when the wife was in Country B and the husband spent time in Australia. His evidence, which the wife does not generally dispute, is that from 2015 (and until they relocated to Australia) he spent more time in Country B than in Australia in each calendar year.
(b)He submits that the wife’s evidence in respect of her asserted contributions to the de facto relationship relates only to the period of time when they cohabited in Country B, as well as the fact that it appears they only merged their finances in Country B but not in Australia. However, this submission overlooks her evidence that, during their cohabitation in Australia between September 2019 and January 2022, she made modest financial contributions totalling approximately $18,000. Further, his submission overlooks the fact that, albeit disputed by him (and which I am unable nor do I presently need to resolve) the wife deposes to having been the primary homemaker in their relationship, including in Australia, as well as to having cared for him in Australia between December 2019 and about mid-2020, after he underwent surgery, as well as having made non-financial contributions constituted by “manual labour work, for a number of building related projects and property maintenance requirements”. The husband joins issue with these asserted contributions or the extent thereof and I am unable to make any findings in relation thereto at this interlocutory stage. Nevertheless, in the circumstances of this case and, in particular, the evidence of Ms F, this issue is of little weight in the determination of the issue presently for determination.
(c)Further, the husband points to the fact that the wife does not dispute his evidence that, at the commencement of their de facto relationship, he had significant financial resources and property holdings under various structures, such as trusts and/or companies, in Australia. Whilst he relies on this factor in support of his opposition to the anti-suit injunction, it overlooks the fact that the Australian proceedings, in respect of which he does not assert forum non conveniens, will be determined not only on the basis of contributions pursuant to s 90SM(4)(a)-(c), but also the matters referred to in s 90SF(3), which are imported by s 90SM(4)(e).
(d)He refers to the fact that the wife and he are both citizens of Country B, whereas only he is an Australian citizen, whilst she is a permanent resident. Again, for the reasons I have already given, this is of little weight.
Secondly, as to the stage which each proceeding has reached and of the costs thereof, this matter is similarly far from determinative and, indeed, is of little relevance in the circumstances of this case. Both the earlier Country B proceedings and these later Australian proceedings are in their infancy. The husband refers to and relies upon the evidence of Ms F to the effect that, now that the wife has filed her “Answer to Complaint”) in the Country B proceedings, the matter will be listed for a preliminary hearing, where all the facts will be presented and the evidentiary issues will be considered, following which the main, evidentiary hearing will occur and judgment at first instance will then be delivered. Like Australia, if the parties wish to challenge that decision, they have a right of appeal and, if successful, the matter will be reheard. The evidence of Ms F is that the timeframe to conclude the Country B proceedings is between three to seven years, which the husband submits presumably includes the time for the determination of the case that has been retried after a successful appeal. Whilst Ms F was not cross-examined and this matter could not be clarified, I infer this is likely so. If there are no appeals in the Country B proceedings, presumably they will conclude towards the earlier end of the range estimated by Ms F. If these Australian proceedings are (or are sought to be) listed for trial prior to the determination of the Country B proceedings, possibilities include that they might be adjourned under s 79(5) of the Act or that the Court might make a partial property settlement, dealing with the Australian property pending the outcome of the Country B proceedings
The husband submits that there is no evidence of what the parties have spent on legal fees in the Country B proceedings. That is so. His case outline was filed on 15 March 2023, a week before the hearing. The wife therefore was well aware of this contention. Nevertheless, she did not adduce any evidence in relation thereto. Whilst he did not do so either, as the applicant for the anti-suit injunction, the burden lies with her. On the eve of the hearing, the husband filed a costs notice in relation to these Australian proceedings which disclosed that, to that date, he had incurred and paid legal costs and disbursements totalling $200,632.12 (including GST) and had incurred unbilled legal costs of $7888.65 (including GST) and that, thereafter, his future costs and disbursements were estimated to be $275,893. On the morning of the hearing, the wife filed a costs notice in relation to these proceedings which disclosed that, to the preceding day, she had incurred billed costs and disbursements totalling $106,223.31 (including GST), of which $20,738.74 been paid; she had unbilled costs and disbursements totalling approximately $48,500 (excluding GST); and that, thereafter, her future costs and disbursements were anticipated to be up to $350,000 (excluding GST). However, she was silent in relation to her costs in the Country B proceedings. She merely deposes that she has limited access to funds; that she supports her adult daughter from a prior relationship, who will soon be 19 years of age; that she will require litigation funding in the order of $300,000 (it would appear, in Australia); that she will “very soon run out of money, being unable to fund [her] legal matters”; that she does not have the financial means to travel to Country B and to participate in the proceedings there; and that she is in a “desperate” financial position.
Although the evidence of Ms F is that the timeframe to conclude the Country B proceedings is between three to seven years, the husband submits that there are two matters in the Australian proceedings which must be determined before the substantive property matters can be considered, such that “[r]ealistically, it could take up to 3 years from the date that the [wife] initiated these proceedings before final judgement is delivered”. Those issues, which he seeks be dealt with as preliminary matters, are “the issue of forum” and the wife’s application to set aside the Financial Agreement with his former wife. The first of those matters will be dealt with by the orders I shall make, which are the subject of these reasons for judgment. In relation to the second of those matters, I have not yet heard submissions in relation to whether or not the wife’s application to set aside the Financial Agreement should be determined as a preliminary issue.
Thirdly, in relation to whether the parties can participate in the respective proceedings on an equal footing, the husband submits there is no evidence before the Court to suggest that the husband or the wife would be participating in either the Australian proceedings or the Country B proceedings on anything but an equal footing. He submits, correctly in my view, that in circumstances where the wife deposes to speaking limited English and required an interpreter for the swearing of her Australian affidavit material, her disadvantage in terms of language and understanding of documents and court proceedings is likely greater in the Australian proceedings instituted by her, rather than in the Country B proceedings instituted by him. However, this submission ignores the fact, to which I have referred above, that of the two parties, the husband appears to be far better financially resourced than the wife to conduct litigation into courts.
Fourthly, in relation to whether the controversy between the parties is the same in both jurisdictions, the husband refers to the dicta of the plurality of the High Court in Henry v Henry at 591–592, cited above, that the marital relationship lies at the heart of proceedings between husbands and wives and that it is the subject of the controversy, such that disputes with respect to (inter alia) property will ordinarily be but an aspect of an underlying controversy with respect to the relationship. Given the incorporation by the Commonwealth Parliament into the Act of the financial aspects of de facto relationships, I can see no reason why that dicta should not be equally applicable to such relationships and the wife did not contend otherwise. The husband submits, correctly in my view, that both the Australian proceedings and the Country B proceedings involve the wife’s and his respective applications for various forms of financial relief following the breakdown of their de facto relationship, such that the relief in both arises out of that relationship. Whilst the wife also seeks, in these proceedings, to set aside the Financial Agreement between the husband and his former wife, in my view, nothing determinative turns, one way or the other, upon the nature of that controversy.
Fifthly, in relation to whether or not complete relief between the husband and the wife is available in these Australian proceedings or whether something is to be gained in the Country B proceedings, the husband correctly submits that, notwithstanding having first addressed the preceding four considerations, this is, in fact, the starting point for the determination of the wife’s application for an anti-suit injunction. See Lan v Hao (No 2) at [59]. In this regard, he submits that litigation in Australia is necessary to determine (I would interpolate, at least) the wife’s application to set aside the Financial Agreement between his former wife and him. I so interpolate because, in respect of the Australian proceedings instituted by the wife, he does not seek an anti-suit injunction in relation to the balance of the proceedings. Further, he submits that litigation in Country B is necessary for the wife and him to obtain orders dividing (again, I would interpolate, at least) the joint property held by them there, as such relief is not effectively available in Australia. The evidence of Ms F in this regard is clear and unchallenged; an order of this Court to adjust the property of the husband and the wife in Country B, being an order in personam, and not in rem, would not be recognised or able to be enforced there, the Country B courts having exclusive jurisdiction in relation thereto, even when the respondent (namely, the wife) is not domiciled there.
The husband further submits (at [40] of his summary of argument) that, insofar as he earlier sought relief in the Country B proceedings in relation to, inter alia, Australian property, namely, the Lovric Family Trust, Q Pty Ltd, R Pty Ltd, S Pty Ltd, T Pty Ltd and P Pty Ltd, “on the face of the evidence before the Court, such declarations are not necessary in the [Country B] proceedings as the entities and trusts, as well as the real property is held by those entities were acquired before 2009. Accordingly, such property is ‘separate property’ according to Country B laws and therefore not subject to a division”. However, this submission fails to address why relief was sought in the Country B proceedings in relation to that Australian property. At the hearing before me, the husband’s case was conducted on the basis that the Country B proceedings, insofar as they relate to the property there, should continue and not be the subject of an anti-suit injunction. Other than possibly in [40] of his summary of argument, it was not suggested that the Country B proceedings should deal with Australian property and, indeed, in the course of her submissions, Senior Counsel for the husband conceded that he will not persist with his claim in those proceedings insofar as it relates to Australia property.
In relation to the jurisdictional basis for the Country B proceedings, Ms F predicates her expert opinion, inter alia, on “the assumption that immovable property being the subject of division is located in the territory of the City of City C (rule of exclusive territorial jurisdiction)”. She continues that “the jurisdiction of the court in [Country B] exists if the respondent has a domicile in [Country B]” and, further “that if litigants are citizens of [Country B] the jurisdiction of a court in [Country B] exists even when the respondent has residence in [Country B]”. Her evidence in this latter regard is opaque and neither party sought to clarify it, either by posing questions to her under r 7.26 of the Rules or by cross-examination.
However, albeit in answer to the question of whether any orders of this court, made in personam, for the adjustment of Country B property would be enforceable in Country B, the evidence of Ms F, which is recited verbatim in the husband’s summary of argument at [39], makes clear that the Country B court has “jurisdiction if the property of the respondent or the item sought by the action is located in the territory of [Country B]” (emphasis added). She continues, opining that the Country B court “shall have exclusive jurisdiction in proceedings the object of which is the right of ownership and other rights in rem, if the immovable property is located within the territory of [Country B]” (emphasis added). Thus, it would appear that the jurisdiction of the Country B court is in relation to both real property and personal property situated there.
Further, even if the Country B court could or would deal with extra-territorial property, any such orders, whether in personam or in rem, could not be enforced per se in this Court or otherwise interfere with this Court’s jurisdiction under the Act. In the circumstances, including in particular the concession made by Senior Counsel at the hearing before me, I shall grant an anti-suit injunction restraining the husband from taking any further step in the Country B proceedings insofar as they relate to property in the Commonwealth of Australia. I acknowledge that it is unclear from the evidence of Ms F whether the Country B court could or would give effect to such a limited anti-suit injunction, although for the reasons proffered at the commencement of this paragraph, it may well matter not. However, I am fortified in making such a limited anti-suit injunction in circumstances where, notwithstanding that the relief sought by the husband in his initiating application filed first in time in Country B on 20 July 2022 included property (real and personal) in Australia, in his Case Outline he makes it clear that he seeks to be at liberty to continue the Country B proceedings “in respect of the property and liabilities of the Applicant [wife] and the First Respondent [husband] which are situated outside the Commonwealth of Australia” and that they be restrained from taking any further steps in these Australian proceedings “to obtain an adjustment between them of property and liabilities situated outside of the Commonwealth of Australia” (emphasis added).
Sixthly, and further to the previous matter, in relation to whether or not there is anything to be gained in the Country B proceedings or, put another way, whether those proceedings will give rise to additional or other remedies, the husband correctly submits that, whereas orders can be made in the Country B proceedings to separate the parties’ interests in property in Country B, Australian orders purporting to do so will not be recognised there. This is because, as is made clear from the unchallenged evidence of Ms F, the Country B court has exclusive jurisdiction over property there, save and except when international treaties are in force between Country B and another country. At present, there is no treaty in force between Australia and Country B. In the circumstances of this case, I consider this to be an important factor in the exercise of my discretion whether or not to grant the anti-suit injunction sought by the wife.
Seventhly, the husband submits that a further and important consideration is that, now that proceedings have been commenced in Country B with respect to Country B property, they cannot, in the circumstances of this case, be discontinued. He refers to and relies upon the evidence of Ms F that, not only would the Country B court refuse to enforce an anti-suit injunction made by this Court against him, to restrain him from continuing the Country B proceedings, but the Country B court would consider a request made by him to withdraw from those proceedings, by reason of these Australian proceedings, to be unfounded. Unusual as that may sound in Australia where, for example, in this court, a party may file a Notice of Discontinuance, that is the unchallenged expert evidence of Ms F, which I accept.
In conclusion, the husband submits that the Country B proceedings are necessary, as orders of that court are required to separate the parties’ interests in joint property there. I would also add that it appears the wife may be able to bring a claim against the husband’s separate property there, if she is able to establish an “increase of value”. Accordingly, he submits that the continuation of the Country B proceedings does not fall within the category of cases which could be described as “fixatious or oppressive”. I agree. Further, the Country B proceedings are first in time and concern Country B property; thus, on the evidence of Ms F, the legal conditions to withdraw the Country B proceedings on the ground of international lis pendens have not been met and, whether the husband seeks to discontinue those proceedings, either of his own accord or by reason of an anti-suit injunction of this Court, they will nevertheless continue (albeit perhaps unusually). He therefore submits that the most appropriate way for what he describes as “the parties’ complex international issues” to be dealt with is for him to be at liberty to continue the Country B proceedings in respect of the property of the wife and him “situated outside the Commonwealth of Australia”. This, he contends, is consistent with the common law approach to parallel proceedings and accords with the recommendations of the unchallenged opinion of the single expert, in particular, in her “conclusions and recommendations”.
CONCLUSION
On the evidence and, in particular, the unchallenged expert evidence of Ms F, upon which I place great weight, and for the reasons herein, I am not satisfied that an anti-suit injunction should be granted, restraining the husband from continuing the Country B proceedings, insofar as those proceedings seek to deal with property there. However, given the interlocutory relief presently sought by the husband in these Australian proceedings, as well as the general tenor of his summary of argument (with the possible exception at [37] and [40] thereof), namely, that he be at liberty to continue the Country B proceedings in respect of the property of the wife and him situated outside of the Commonwealth of Australia and that they be restrained from taking any further steps in these Australian proceedings to obtain an adjustment between them of any property situated outside thereof, I shall grant a limited anti-suit injunction restraining him from continuing the Country B proceedings insofar as they seek to deal with property within the Commonwealth of Australia. Further, notwithstanding the final relief presently sought by the husband in the Country B proceedings, which includes Australian property, I note the concession made before me by his Senior Counsel that, in any event, he will not persist with his claim to such property in those proceedings. In the circumstances, I shall grant such a limited anti-suit injunction, notwithstanding that I am cognisant of the fact that, on the unchallenged evidence of Ms F, such order may not be given effect there. However, at least inferentially, it appears from her evidence that the Country B court may not even have jurisdiction to deal with the property situated here. No submissions were made, by either party, in relation to the property situated in Country D and Country E.
In particular, I proceed on the evidence of Ms F that the law of Country B is the applicable law for determining the property dispute between the husband and the wife in relation to property situated there and that any order of this Court in relation to such property will not be recognised in Country B in circumstances where the courts of that country have exclusive jurisdiction.
Of all the factors identified by the husband above, with which the wife does not disagree in principle and which I have carefully considered, derived variously from Henry v Henry, CSR Ltd v Cigna Insurance Australia Ltd and Lan & Hao (No 2), it is the latter four factors which, in my view, are dispositive of the issue before me for determination. The controversy between the husband and the wife is not the same in Australia and Country B; the Country B proceedings will deal with the property situate there in rem and, by virtue of the expert evidence of Ms F, it is possible, if not likely, that these Australian proceedings will not deal, at least directly, with the property situate there. Even if it does so, it will only be in personam. Any order of this Court in relation to the Country B property would likely be otiose and therefore unlikely to be made. It is no answer, at this early stage of these proceedings, for the wife to submit that the answer to the unenforceability in Country B of orders of this Court, in relation to the property there, lies in this Court granting her a greater share of the Australian property. That may or may not be so, once I have heard and considered all of the evidence at trial and determined what will be a just and equitable outcome. However, I cannot possibly prognosticate about that at this stage. On the unchallenged evidence of Ms F, it is abundantly clear that complete relief in relation to property in Country B is not available in this Court, in circumstances where any orders of this court in relation thereto would not be enforceable in rem here or either in personam or in rem there. Accordingly, there is something to be gained in the Country B proceedings; they will give rise to additional or other remedies, namely, orders in relation to property there that are enforceable in rem (and possibly in personam too). This is in contradistinction to any orders this Court might make in the Australian proceedings, in relation to property in Country B, which will not be recognised there.
In the circumstances, the wife’s application for an anti-suit injunction restraining the husband from taking any further step in the Country B proceedings, insofar as those proceedings relate to any property in the Country B, will be dismissed but the husband will be restrained from taking any further step in those proceedings insofar as they relate to property in the Commonwealth of Australia.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 15 May 2023
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