T v B - [2018] WASCA 157

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   T -v- B [2018] WASCA 157
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   5 SEPTEMBER 2018
DELIVERED          :   5 SEPTEMBER 2018
PUBLISHED           :   5 SEPTEMBER 2018
FILE NO/S:   CACV 75 of 2018
BETWEEN:   T
Appellant
AND
B
Respondent

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   O'BRIEN J
Citation: TRUSWELL and BONELLI [2018] FCWA 120
File Number             :   PTW 7570 of 2016

Catchwords:

Practice and procedure - Application for injunctions - Not a proper case for grant of injunctions - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr G A Lacerenza

Solicitors:

Appellant	:	In Person
Respondent	:	GA Lacerenza & Associates

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486
Mercanti v Mercanti [2015] WASCA 206
Truswell and Bonelli [2018] FCWA 120

REASONS OF THE COURT:

This matter came before the court today pursuant to a registrar's notice to attend dated 30 August 2018, to consider the appellant's application filed 30 August 2018. At the conclusion of the hearing, we made the following orders:
Upon the undertaking by the respondent through his counsel not to sell, encumber or deal by way of sale with the property at [Property A] (Property) pending the determination of this appeal or further order:
1.Subject to orders 2 and 3, the appellant's application in an appeal filed on 30 August 2018 is dismissed.
2.The appellant have liberty to apply in the event that the respondent does not through his solicitors provide her with reasonable access to the Property to remove her personal possessions located at the Property. For this purpose, any request by the appellant for such access is to be made to the respondent's solicitor and is to propose arrangements for the physical removal of her personal possessions within 4 weeks of the date of this order.
3.The respondent have liberty to apply to vary or discharge his undertaking on 7 days' written notice to the appellant.
These are our written reasons for making those orders.
The appeal notice was filed on 10 August 2018 in respect of a decision of the Family Court of Western Australia in Truswell and Bonelli.[1] The primary judge used pseudonyms to identify the parties in the primary decision. By the primary decision, O'Brien J dismissed an application by the appellant seeking orders for the alteration of property interests pursuant to the Family Court Act 1997 (WA). It appears from the primary decision that the respondent owned two properties, Property A and Property B. The primary judge dismissed the appellant's application on the basis that the appellant had not established that the parties were in a de facto relationship within the meaning of s 13A of the Interpretation Act 1984 (WA).
[1] Truswell and Bonelli [2018] FCWA 120 (primary decision).
The appellant, by her application filed 30 August 2018, sought orders to the following effect:
1.The appellant be given immediate access to Property A and be able to continue to live at Property A.
2.The respondent be restrained from selling, encumbering, renting, dealing or 'attending' in any way with Property A.
The appellant's application was supported by an affidavit sworn by the appellant on 30 August 2018. In that affidavit, the appellant deposed to the following matters:
1.On 17 July 2018, she received an email from the respondent's solicitor stating that the respondent had instructed him to give the appellant two weeks' notice to vacate Property A, where she had lived for 17 years.
2.On 6 August 2018, when the appellant was away from the property, the respondent attended Property A and changed the locks and placed padlocks on the two front gates.
3.The appellant contacted the police, but the respondent refused to give her access to Property A. She climbed over the front gate, but was not allowed to enter the house. She had to spend the night at a friend's house. She was given a few personal items by the respondent and a friend of his.
4.On 10 August 2018, she was given a letter from the respondent stating that she was required to vacate Property A by 31 August 2018.
5.The police told her she could enter Property A at any time and have a locksmith change the locks, and continue living at the property.
6.Upon returning to Property A some days later, she found that the respondent had put barbed wire on the front gates.
7.On 23 August 2018, the respondent delivered a letter from his lawyer stating that the appellant was required to vacate Property A by 31 August 2018, and if not vacated by then, the respondent would remove her belongings at her cost.
8.On 23 August 2018, the respondent's lawyer, by email, requested the appellant not to use the respondent's address and to change her address for service. She does not have a fixed address.
9.The appellant has been housesitting for a friend of a friend until 6 September 2018, but thereafter she does not have a place to live and does not have the funds to rent a property.
10.She consulted a lawyer and was advised not to change the locks but to apply to the court for interim orders to regain access to Property A.
The first order sought by the appellant was, in effect, a mandatory injunction requiring the respondent to permit the appellant to continue residing at Property A. The second order sought was an injunction to restrain the respondent from dealing with Property A.
In Mercanti v Mercanti,[2] the court said:[3]
The exercise of this court's discretion to grant an injunction pending the determination of an appeal requires an assessment to be made of the decision under appeal and also the balance of convenience, including whether refusal of the injunction would render the appeal nugatory. See Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd [1988] HCA 53; (1988) 165 CLR 452, 460. The nature of the criteria which are ordinarily relevant to the exercise of this court's discretion to grant an injunction, pending an appeal, are analogous to those which are relevant to the grant of a stay. Although it is ordinarily necessary to establish that the appellant has reasonable prospects of success on the appeal, the appellant's prospects are, to some extent, interdependent with the balance of convenience. See Apache Northwest Pty Ltd v Agostini [2009] WASCA 147 [10].
The general principles which apply to an application for a stay are not materially different from those which apply to an application for a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA). Those principles were summarised in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]. See also Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 [3].
[2] Mercanti v Mercanti [2015] WASCA 206.
[3] Mercanti [16] - [17].
In Eastland Technology Australia Pty Ltd v Whisson,[4] the court outlined the relevant principles in the following terms:
•The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
•It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
•It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
•The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
•If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
•If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
[4] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
We were not persuaded that this was a proper case for the grant of the injunctions sought by the appellant. That was essentially for three reasons.
First, we were not persuaded that the injunctive relief sought was necessary to preserve the subject matter or the integrity of the litigation. Before us, the respondent, through his counsel, undertook to the court not to sell, encumber or deal by way of sale with Property A pending the determination of this appeal or further order. In those circumstances, if the appeal were successful, any entitlement the appellant may have to an alteration of the parties' property interests would not be lost if the injunctions were not granted.
Secondly, even if it were thought, in light of the respondent's undertaking, that the appeal would be rendered nugatory without the grant of the injunctions, there was no material before us to indicate that the appeal has, ultimately, reasonable prospects of success.
Thirdly, the appellant had not offered an undertaking as to damages, which is the ordinary condition for interlocutory injunctive relief.[5] Given the absence of an undertaking as to damages by the appellant, and in light of the respondent's undertaking, the balance of convenience was against the grant of injunctive relief.
[5] See Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486 [33].
At the hearing, the appellant raised concerns about obtaining her personal possessions from Property A. The respondent's counsel indicated in effect, that there would be no difficulty with the appellant making reasonable arrangements for that to occur through his offices. Order 2 was made to allow the appellant to apply for relief in the event that does not occur.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CL
ASSOCIATE TO THE HONOURABLE JUSTICE MURPHY
5 SEPTEMBER 2018