Teo & Guan
[2015] FamCAFC 94
•21 May 2015
FAMILY COURT OF AUSTRALIA
| TEO & GUAN | [2015] FamCAFC 94 |
| FAMILY LAW – APPEAL – JURISDICTION – Anti-suit injunction – Whether the Family Court of Western Australia (“FCWA”) has power to grant an anti-suit injunction – The Family Court of Australia can grant an anti-suit injunction in the exercise of its implied power to control its own process, and arguably pursuant to s 34 of the Family Law Act 1975 (Cth) (“the federal Act”) – It is also arguable that s 114(3) of the federal Act gives power to grant an anti-suit injunction – There is a clear statutory intention that the FCWA should have the same powers as the Family Court of Australia, notwithstanding that the FCWA is not a superior court of record – The FCWA cannot grant equitable relief, but has power to control its own process and can grant such relief as is incidental and necessary to the exercise of the jurisdiction conferred by statute – The primary judge had the requisite power – Appeal dismissed. FAMILY LAW – APPEAL – INJUNCTIONS – Anti-suit injunction – Where the husband appealed against an anti-suit injunction made by a judge of the FCWA which restrained the husband from taking further steps in proceedings in Singapore – Where prior to the commencement of the Singaporean proceedings, the wife had applied to the FCWA seeking property settlement orders and to set aside a deed under s 106B of the federal Act – The primary judge did not err in finding that the FCWA could determine all aspects of the dispute; that the FCWA was not a clearly inappropriate forum; that the Singaporean proceedings interfered with the FCWA proceedings; and that the Singaporean proceedings were vexatious or oppressive – The primary judge did not fail to take account of relevant considerations, or fail to properly exercise her discretion – Appeal dismissed. |
| Australian Constitution – s 71 Family Court Act 1997 (WA) – s 9(2), s 29(1), s 35 Family Law Act 1975 (Cth) – s 4(1), s 20, s 21(2), s 33, s 34, s 41, s 42, s 106B, s 114 Family Law Rules 2004 (Cth) – r 6.02 Federal Court of Australia Act 1976 (Cth) – s 23 Foreign Judgments Act 1991 (Cth) Judiciary Act 1903 (Cth) – s 79, s 80 Trustees Act 1962 (WA) – s 57 Trusts (Hague Convention) Act 1991 (Cth) |
| ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Butterworths, Australian Family Law, vol 1, [42.1] Elise Bant, ‘Statute and common Law: Interaction and influence in light of the principle of coherence’ (2015) 38(1) University of New South Wales Law Journal 367 Enid Campbell, ‘Inferior and Superior Courts and Courts of Record’ (1997) 6 Journal Martin Davies, Andrew Bell & Paul Brereton, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 9th ed, 2014) Anthony Dickey, ‘Orders in respect of foreign property under section 79’ (1993) 67 Australian Law Journal 538 Michael Gillooly, ‘Legal coherence in the High Court: String theory for lawyers’ (2013) 87 Australian Law Journal 33 Mark Leeming, Authority To Decide – The Law of Jurisdiction in Australia (The Federation Press, 2012) Chief Judge Ian McCall, ‘Family Courts – Some Jurisdictional Questions’ (Paper presented at 5th National Family Law Conference, Perth, September 1992) 551 Thomas Raphael, The Anti-Suit Injunction (Oxford University Press, 2008) |
| APPELLANT: | Mr Teo |
| RESPONDENT: | Ms Guan |
| FILE NUMBER: | PTW | 7240 | of | 2013 |
| APPEAL NUMBER: | WA | 12L | of | 2014 |
| DATE DELIVERED: | 21 May 2015 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | May, Thackray & Crisford JJ |
| HEARING DATE: | 28 October 2014 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 8 April 2014 |
| LOWER COURT MNC: | [2014] FCWA 30 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Ashdown with Ms Farmer |
| SOLICITOR FOR THE APPELLANT: | Bowen Buchbinder Vilensky |
| COUNSEL FOR THE RESPONDENT: | Dr Dickey QC |
| SOLICITOR FOR THE RESPONDENT: | Carr & Co |
Orders
The appellant be granted leave to appeal.
The appeal against the orders of the Honourable Justice Duncanson made on 8 April 2014 be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal, as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
Teo & Guan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 12L of 2014
File Number: PTW 7240 of 2013
| Mr Teo |
Appellant
And
| Ms Guan |
Respondent
REASONS FOR JUDGMENT
The appeal
Mr Teo (“the husband”) has appealed against an order made by Duncanson J in the Family Court of Western Australia (“the FCWA”) restraining him from pursuing proceedings instituted in the High Court of the Republic of Singapore.
Ms Guan (“the wife”) opposes the appeal.
The appeal raises a novel issue concerning the powers of the FCWA.
Background
The following background is largely taken from the reasons of the primary judge and may now be regarded as uncontroversial.
The husband and wife were married in Singapore in 1984; separated in 2010; and have three adult children.
The husband lives about seven months each year in Perth and the balance of the time in Singapore. The wife lives in Perth and is an Australian citizen.
In February 2012, the parties and their children executed a Deed of Family Arrangement (“the Deed”) containing declarations of trust by each party. The Deed, which was governed by Singaporean law, purported to “regulate the ownership” of assets located in both Australia and Singapore. The overall effect of the Deed was said to be that the five parties were to share the assets equally (with the wife to receive her S$2 million share by instalments).
Clauses 12 and 15 of the Deed are of particular relevance:
12.The division of the Collective Assets in particular as between [the husband] and [the wife] shall be in full and final settlement of all matters and present and future claims between themselves including and not limited to any claims for matrimonial assets in any proceedings whether in Singapore or anywhere else;
15.This Deed shall be governed and construed in accordance with the Laws of Singapore.
In December 2013, the wife filed an application in the FCWA seeking to set aside the Deed pursuant to s 106B of the Family Law Act 1975 (Cth) (“the federal Act”) and an equal division of the assets. At that time, the wife had received S$1million pursuant to the Deed. On 18 February 2014, a Registrar made procedural orders concerning the wife’s application.
On 28 February 2014, the husband filed an originating summons in the High Court of the Republic of Singapore seeking:
·a declaration that the Deed is “valid effectual and binding” on all parties to the Deed;
·an order that the wife “withdraw or cease all action and proceedings” in the FCWA; and
·an injunction restraining the wife and her servants and agents from “carrying on” the proceedings in the FCWA.
The originating summons was made returnable in Singapore on 11 March 2014, but was only sent to the wife’s solicitors on the day before the hearing.
On 20 March 2014, the husband filed a response to the wife’s application in the FCWA, seeking final orders for a stay and the dismissal of the wife’s claim. He sought no interim orders.
On 25 March 2014, the wife filed an Application in a Case in the FCWA seeking, inter alia, the following order:
The husband be restrained and an injunction be granted restraining him from taking any further steps, and from doing any act or thing to further prosecute the proceedings filed by him in the High Court of the Republic of Singapore … on 28 February 2014.
The Application in a Case was listed on 7 April 2014, at which time the primary judge was advised that the summons was to be heard in Singapore two days later. The wife had not participated in the Singaporean proceedings.
On 8 April 2014, the primary judge made an order restraining the husband from prosecuting the proceedings in Singapore, in the same terms as proposed by the wife. Adopting her Honour’s terminology, we will refer to this order as “the anti-suit injunction”, even though it was strictly an “anti-anti-suit injunction”.
The reasons of the primary judge
The primary judge accepted the argument of counsel for the husband, relying on CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 (“Cigna”), that the court could grant an anti-suit injunction on one of two grounds; namely in the exercise of an inherent jurisdiction to protect the court’s process or in the exercise of equitable jurisdiction.
Having found that the FCWA was not a “clearly inappropriate forum” (by reference to factors stated in Henry v Henry (1996) 185 CLR 571), her Honour gave these reasons for granting the injunction:
90 In my discretion, and in the circumstances of this case, I find the existence of proceedings in two countries arising from the same controversy namely with respect to the marital relationship of the parties, to be vexatious or oppressive. Further support for my conclusion that the Singaporean proceedings are vexatious and oppressive can be gained from my findings about the considerations relevant to whether this court is a clearly inappropriate forum as they are relevant to the grant of an anti-suit injunction given the common test of vexation or oppression.
91 If the anti-suit injunction sought by the wife is not granted and the orders sought by the husband in the Singaporean proceedings are made, the wife will be permanently restrained from bringing property proceedings against the husband. If she continues with these proceedings in contravention of such an order, she will be in contempt in the Singaporean proceedings. That is vexatious and oppressive to the wife.
…
92 I conclude I should grant the anti-suit injunction sought by the wife. I do so pursuant to the Court’s inherent power to protect its own proceedings or processes as I am satisfied the Singaporean proceedings interfere with or have a tendency to interfere with these proceedings. I also grant the anti-suit injunction pursuant to the Court’s equitable jurisdiction to restrain unconscionable conduct or the unconscientious exercise of legal rights having regard to my findings as set out above. …
Leave to appeal
Counsel for the husband submitted that leave to appeal was not required as the order was not interlocutory. Senior counsel for the wife said there was a good argument that the order was final, and did not oppose leave being granted.
We consider the order is strictly interlocutory: Emamy and Marino (1994) FLC 92-487 at 81,073-4; Bienstein v Bienstein (2003) 195 ALR 225 at [25]. However, as the practical effect of the order is final, and since the issue raised is of general importance, we propose to grant leave to appeal.
The two questions to be determined
The appeal raises two questions:
·whether the FCWA has power to grant an anti-suit injunction (Ground 1); and
·if the power exists, whether the injunction should have been granted (Grounds 2 to 9).
Ground 1 – The power of the FCWA to grant an anti-suit injunction
Ground 1 asserts that her Honour erred:
in finding that the Family Court of Western Australia had jurisdiction and power to grant an anti-suit injunction restraining the [husband] from taking any further steps in, or to further prosecute, proceedings in … Singapore.
Ground 1 requires an explanation of the FCWA’s statutory jurisdiction and powers, and the significance of the court not being a “superior court of record”. Having discussed these matters, we will consider the undoubted power of the Family Court of Australia to grant an anti-suit injunction, before disposing of the argument that the FCWA lacks that power. In doing so, we will deal with issues that appear not to have been the subject of careful consideration by this Court, including the extent to which s 42(1) and s 114(3) of the federal Act provide power to grant an anti-suit injunction.
Establishment of the FCWA and conferral of its jurisdiction
The establishment of the FCWA, and the legislative framework within which it operates, were explained by Thackray J in Vodicka v Vodicka (2005) 194 FLR 246, where the issue was whether the FCWA had an accrued jurisdiction:
25The starting point is s 71 of the Constitution of the Commonwealth, which provides that the judicial power of the Commonwealth shall be vested in the High Court of Australia, such other federal courts as the Parliament creates and “in such other courts as it invests with federal jurisdiction”.
26Section 77 of the Constitution is the provision that gives courts vested with the judicial power of the Commonwealth the authority to exercise that power over a given subject matter. It provides that with respect to any of the matters mentioned in ss 75 and 76 of the Constitution, the Parliament may make laws “investing any court of a State with federal jurisdiction”. The Family Law Act is one such law.
27Jurisdiction under the Family Law Act can be exercised by a variety of courts. In the “eastern” States of Australia that jurisdiction is exercised by two federal courts (the Family Court of Australia and the Federal Magistrates Court) and by a variety of State courts of summary jurisdiction.
28The position in Western Australia is quite different and has been since the commencement of the Family Law Act. Section 41 of that Act authorised the making of arrangements for the establishment of State Family Courts. Western Australia was the only State to avail itself of the opportunity.
29The Family Court Act 1975 (WA) established the Family Court of Western Australia as a court of record. The Court continues by virtue of s 9 of the Family Court Act 1997 (WA), which repealed the Family Court Act 1975. …
30Section 35 of the Family Court Act 1997 provides that the Family Court of Western Australia has “the federal jurisdiction with which it is invested by or under the Family Law Act 1975”. Section 36(1) provides that the Court also has “the non-federal jurisdictions conferred on it by or under this or any other Act”.
31At the time the Family Law Act was enacted it was expedient for the Supreme Courts of the States to be permitted to continue to exercise jurisdiction in matrimonial matters, pending the establishment of the Family Court of Australia and any State Family Courts. Accordingly, s 39(1) of the Family Law Act provides that “a matrimonial cause may be instituted under this Act … in the Supreme Court of a State”. Section 39(5) provides that “the Supreme Court of each State is invested with federal jurisdiction … with respect to matters arising under this Act in respect of which … matrimonial causes are instituted under this Act”.
32Section 41(2) of the Family Law Act made provision for the issue of a proclamation terminating the jurisdiction of the Supreme Court of a State in which a State Family Court had been established. Such a proclamation was issued following the establishment of the Family Court of Western Australia. By operation of s 41(3) of the Family Law Act, the provisions of that Act “in relation to the institution of proceedings … and in relation to proceedings so instituted” are to be read as if references to the Supreme Court are references to the Family Court of Western Australia and “that court is invested with federal jurisdiction accordingly”.
33By this somewhat convoluted route, it will be seen that the Family Court of Western Australia is a State court invested with federal jurisdiction in respect to matters arising under the Family Law Act and has also the non-federal jurisdictions conferred on it by the Family Court Act 1997 and other Acts.
The statutory jurisdiction and power of the FCWA
As a court created by statute, the jurisdiction and powers of the FCWA are those conferred expressly (or by implication) by statute, and such other powers as are incidental and necessary to the exercise of the jurisdiction and powers so conferred: ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at [64].
Although the FCWA has a non-federal jurisdiction, we are concerned only with its powers when exercising federal jurisdiction. The federal jurisdiction of the court, which is invested by s 41(3) of the federal Act, is recognised by s 35 of the Family Court Act 1997 (WA) (“the State Act”). Section 35 provides that:
The Court has throughout the State the federal jurisdiction with which it is invested by or under the Family Law Act or any other Commonwealth Act and any subsidiary legislation in force under such an Act.
The statutory jurisdiction and powers of the FCWA are, for all material purposes, identical to those conferred on the Family Court of Australia, save that the State Act does not contain provisions equivalent to s 33 or s 34 of the federal Act, which are expressed in these terms:
33 Jurisdiction in associated matters
To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within the jurisdiction expressed by this Act … that are associated with matters … in which the jurisdiction of the Court is invoked or that arise in proceedings … before the Court.
34 Issue of certain writs etc.
(1)The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.
It is accepted that s 33 and s 34 do not apply to the FCWA since they appear in Pt IV, which defines “Court” in that Part as meaning the Family Court of Australia, unless a contrary intention appears (see s 20).
In any event, s 33 is of no relevance, since it does no more than give the Family Court of Australia jurisdiction in matters arising under a federal law other than the federal Act: Smith v Smith (No 3) (1986) 161 CLR 217 at 238.
While the State Act contains no conferral of power in the terms provided in s 34, it nevertheless clearly assumes that the FCWA will make orders and issue, or direct the issue of, other coercive instruments. This can be seen from s 29(1), which provides that the Marshal “is charged with the service and execution of all writs, orders, decrees, warrants, precepts, processes, and commands directed to the Marshal by … the Court”.
The significance of the FCWA being a “court of record”
A major limb of the husband’s argument relies on the fact that the FCWA is a “court of record” by virtue of s 9(2) of the State Act, whereas the Family Court of Australia is a “superior court of record” by virtue of s 21(2) of the federal Act. We will deal with the argument later, it being sufficient at this point to make some general observations relating to the status of the two courts.
As a “court of record”, the FCWA appears to occupy an inferior position to that of the Family Court of Australia. However, the fact that the Family Court of Australia has been designated as a superior court cannot be taken at face value: DMW v CGW (1982) 151 CLR 491 at 509 (Dawson J); R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 207 (Wilson and Dawson JJ); Re Macks; Ex Parte Saint (2000) 204 CLR 158 at [50] (Gaudron J) and [140] (McHugh J).
Historically, superior courts were courts of unlimited jurisdiction, but in the Australian legal system all federal courts are courts of limited jurisdiction, and are subject to the supervisory jurisdiction of the High Court: R v Ross-Jones; Ex parte Green at 216; New South Walesv Kable (2013) 252 CLR 118 at [30].
Whether the FCWA enjoys a privileged position in this context is a topic that need not detain us; but see In Re Anderson; Ex parte Bateman (1978) 53 ALJR 165; and see also ‘Family Courts – Some Jurisdictional Questions’ (Paper presented at 5th National Family Law Conference, Perth, September 1992), in which McCall CJ explained his reasons for concluding that the fact that the Family Court of Australia “is expressed to be a superior court is … indicative primarily of the formal status of the Court and not of its substantive characteristics” and that “[d]espite their different characterisations it appears … there is no difference between the two Family Courts in Australia”.
It is also unnecessary to examine all of the historical differences between inferior and superior courts, or to consider the extent to which those differences may now be of lesser consequence than they once were: see Enid Campbell, ‘Inferior and Superior Courts and Courts of Record’ (1997) 6 Journal of Judicial Administration 249; and Dr Mark Leeming SC, Authority To Decide – The Law of Jurisdiction in Australia (The Federation Press, 2012), p 29 et seq.
The one difference between superior and inferior courts which is relevant to this appeal concerns the extent to which they possess inherent or implied powers – i.e. powers not expressly conferred by statute.
Traditionally, it has been accepted that superior courts have inherent powers, which give those courts “considerable authority to regulate their own proceedings and to control rights of audience before them, and also to take measures to control abuses of court processes” (Campbell, p 251). On the other hand, inferior courts have no inherent powers, but have implied powers arising by virtue of the fact that the grant of a power to a court “carries with it everything necessary for its exercise”: Grassby v The Queen (1989) 168 CLR 1 at 16 per Dawson J, with whom the other members of the High Court agreed.
In Pelechowski v Registrar, Court of Appeal(NSW) (1999) 198 CLR 435, the majority in the High Court explained what was meant by use of the word “necessary” in the above citation from Grassby (footnotes omitted):
51. The term “necessary” in such a setting as this is to be understood … as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in [the relevant legislation]. In this setting, the term “necessary” does not have the meaning of “essential”; rather it is to be “subjected to the touchstone of reasonableness”.
In Jago v District Court (NSW) (1989) 168 CLR 23 at 74, Gaudron J explained the powers held by all courts, including the power to stay proceedings, which is a power of central importance in this appeal:
Subject to any limitation or restriction to be found in statute, a court necessarily has power (whether that power is identified as inherent power or a power necessarily to be implied from relevant statutory provisions) to control its own process and proceedings.
The power of a court to control its own process and proceedings manifests itself in a variety of ways. It may involve no more than the grant of an adjournment. On the other hand, it is accepted that it may result in the grant of a permanent stay of civil proceedings that are frivolous, vexatious or oppressive. ...
In Barton v The Queen (1980) 147 CLR 75 at 96, Gibbs ACJ and Mason J said there is “ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial”. In Jago v District Court (NSW) at 25, Mason CJ reiterated this proposition as applying to all Australian courts:
It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process … Subject to statutory provision to the contrary, a court also possesses the power to control and supervise proceedings brought in its jurisdiction, and that power includes power to take appropriate action to prevent injustice. …
Subsequently, the High Court has refined the terminology used in describing curial powers not expressly conferred by statute. In DJL v The Central Authority (2000) 201 CLR 226, the plurality said this concerning the powers of the Family Court of Australia (footnotes omitted):
25The Family Court is … not a common law court as were the three common law courts at Westminster. Accordingly, it is “unable to draw upon the well of undefined powers” which were available to those courts as part of their “inherent jurisdiction”. The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute “has powers expressly or by implication conferred by the legislation which governs it” and “[t]his is a matter of statutory construction”; it also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”. It would be inaccurate to use the term “inherent jurisdiction” here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.
The plurality went on to say (footnotes omitted):
27There is applicable to the Family Court the observations made by Starke J in R v Bevan; Ex parte Elias and Gordon:
“To the Constitution and the laws made under the Constitution it owes its existence and all its powers, and whatever jurisdiction is not found there either expressly or by necessary implication does not exist.”
The circumstance that a federal court exercises the judicial power of the Commonwealth is significant. The exercise of that authority has, as incidents arising by necessary implication from Ch III, the power to punish for contempt and the power to preserve the subject matter of a pending application for special leave to appeal. However, the powers conferred upon the Family Court by statute may be exercised only within the range of jurisdiction conferred upon it by laws made by the Parliament under s 77 of the Constitution.
Although directed to the Family Court of Australia, these remarks have application to the FCWA, which is not only a statutory court, but also exercises the judicial power of the Commonwealth when determining matters within the court’s federal jurisdiction (see s 71 of the Constitution).
Importantly for the present appeal, the plurality in DJL v The Central Authority also discussed whether there was any significance in the fact that the Family Court of Australia is a “superior court of record”. They did so in the context of dealing with the question of whether the Full Court had power to set aside one of its own perfected orders (footnotes omitted):
29The application to the Full Court filed on 17 August 1998 was expressed to be brought “pursuant to section 21 of the Family Law Act 1975 and in the inherent jurisdiction of the [Family] Court”. The questions thus arise as to what is involved in the invocation of the “inherent jurisdiction” of a federal court created by the Parliament and of the significance of s 21 of the Family Law Act. Section 21(2) of the Family Law Act states:
“The Court is a superior court of record.”
30Section 98 of the Conciliation and Arbitration Act 1904 (Cth) (“the 1904 Act”) established the Commonwealth Industrial Court as a “Superior Court of Record”. In Forbes, Menzies J concluded that the Commonwealth Industrial Court did not, by virtue of its being a court of that description, have powers which would “go beyond protecting its function as a Court constituted with the limited jurisdiction afforded by the [1904] Act”. Put another way, the principle that a grant of power carries with it everything necessary for its exercise did not apply to the Commonwealth Industrial Court to any greater degree than that identified by Menzies J.
…
32The central issue in the present litigation thus is whether the creation of the Family Court as a superior court of record carried with it the statutory power exercised by the Full Court in the manner sought by the application to “re-open” of 17 August 1998. A starting point is the position respecting orders made after trials in the common law courts at Westminster. These undoubtedly were superior courts of record but, significantly for any analogy, were not appellate courts as was the Family Court in this litigation.
After considering the position of common law courts, and the significance of the fact that they were dealing with the powers of an appellate court, the plurality in DJL v The Central Authority continued (footnotes omitted):
43Likewise, in the present litigation, clarity of thought and the isolation of the true issues have not been encouraged by submissions expressed in general terms respecting the position in “intermediate courts of appeal”. In the case of each such court, State or federal, attention must be given to the text of the governing statutes and any express or implied powers to be seen therein. …
…
45The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as “a superior court of record”. Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act.
The husband concedes that the Family Court of Australia has power to grant an anti-suit injunction. If that is so, then it follows from the authorities discussed that the power must be one which is conferred expressly by or under the federal Act; or arises by way of an implication drawn from that Act; or is incidental and necessary to the exercise of the jurisdiction conferred by that Act.
We therefore now turn to consider how it comes to be that the Family Court of Australia has the power to grant an anti-suit injunction.
The Family Court of Australia’s power to grant an anti-suit injunction
Counsel for the husband submitted in his Summary of Argument that the “power of the Family Court of Australia to grant an anti-suit injunction, arises from section 34(1) of the Family Law Act: D v L (2005) 192 FLR 169 at 178”.
It was further submitted that, because s 34 has no equivalent in the State Act, the FCWA does not have the power to grant an anti-suit injunction.
D v L is also reported as Dobson and Van Londen (2005) FLC 93-225. The argument of counsel for the husband does not reflect what was said in that case, as will be seen from this citation (emphasis added):
42.These submissions on behalf of the husband clearly proceeded on the basis that these principles originating in the equitable jurisdiction had application in this Court. We also mention in this context that the respondent wife did not assert before us, nor as we understand it before the trial Judge, that this Court lacked the power to grant an anti-suit injunction in an appropriate case. Although the matter was not argued before us, we would suggest that the source of that power is to be found either under s 34 of the Family Law Act or in the implied (or inherent) power of the Court (which was accepted in Henry as at least authorising the grant of a stay by this Court on forum non conveniens grounds: see Bennett v Bennett (2001) FLC 93-088).
In Bennett v Bennett (2001) FLC 93-088, which was referred to in Dobson and Van Londen, the Full Court did not even mention s 34, referring instead only to the inherent or implied power, as appears from this passage (emphasis added):
26.Although we have not had the benefit of argument on the matter, we would suggest that the power to grant an anti-suit injunction is an aspect of the inherent, or perhaps more correctly, implied power which this court clearly has (and which was recognised in the High Court decision of Henryv Henry …) to stay its own proceedings on the grounds that proceedings are pending in a foreign court concerning the same matter. …
In support of the proposition that the authority of the Family Court of Australia to grant an anti-suit injunction is an inherent or implied power, the Full Court in Bennett cited the following passage from the majority judgment in Cigna at 390-2, which is of pivotal importance in this appeal (original emphasis, footnotes omitted):
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.
…
It was pointed out in the joint majority judgment in Voth that … “the traditional power to stay proceedings… on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice…in the particular case”.
It is clear from the rationale for the exercise of the power to stay proceedings and, also, from the words “oppressive”, “vexatious” and “abuse of process”… that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice.
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. … [A]s Gummow J pointed out in National Mutual Holdings Pty 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.
In B v B(Re Jurisdiction) (2003) FLC 93-136 at 78,275, the Full Court cited with evident approval the statement in Bennett that the power to grant an anti-suit injunction is an aspect of the inherent or implied power “which [the Family Court of Australia] clearly has … to stay its own proceedings on the grounds that proceedings are pending in a foreign court concerning the same matter”.
B v B (Re Jurisdiction) proceeded by way of a case stated. In answering the final question posed, the Full Court said there was no statutory power permitting the Family Court of Australia to stay its own proceedings, but held that the court had an implied power to do so. Given that High Court has said that the power to grant an anti-suit injunction is the counterpart of a court’s power to stay its own proceedings, B v B (Re Jurisdiction) provides support for the proposition that the Family Court of Australia’s power to grant an anti-suit injunction is an implied power, and not one arising from s 34.
In Kwon and Lee (2006) FLC 93-287, while finding that some propositions in B v B (Re Jurisdiction) were “perhaps too widely stated”, the Full Court again clearly accepted that the jurisdiction to grant a stay is based on the court’s “inherent power” (see in particular [74]). The Full Court went on to say that “generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law” (at [83(ii)]).
Recently, in Jess & Jess (2014) FLC 93-620 at [71], the Full Court accepted (albeit without the benefit of argument) that the authority of the Family Court of Australia to grant an “anti-anti-suit injunction” is derived from the power of a court “to protect the integrity of its processes”.
In another recent Full Court decision, s 114(3) of the federal Act was referred to as being one of the sources of power authorising the Federal Circuit Court of Australia to grant an anti-suit injunction: Galloway & Midden (No 2) (2014) FLC 93-586 at 79,214. We will consider s 114(3) later in our reasons.
In Monticelli v McTiernan (1995) FLC 92-617 at 82,174, the Full Court considered the source of power to grant an anti-suit injunction in proceedings involving children (which operate in a different statutory framework). Nicholson CJ and Fogarty J concluded that the Family Court of Australia’s power to grant an injunction:
can be found both in the express statutory provisions contained in s 70C of the Family Law Act and also in the inherent jurisdiction of this Court to make orders consonant with the welfare of children within its jurisdiction.
We do not propose to discuss Monticelli v McTiernan further, given the different statutory context, it being sufficient to observe that s 70C was the provision by which the court was (at the time) given power to grant injunctions, and that Chisholm J agreed that s 70 provided power to grant the injunction.
The only other occasion, as far as we are aware, where the Full Court has touched on the power to grant an anti-suit injunction was in Lederer & Hunt (2007) FLC 93-311. Although the Full Court did mention s 34 as a possible alternative source of power to the court’s implied jurisdiction, the matter was not the subject of argument, as emerges from the citation below:
33.There was no issue before O’Ryan J or before us that in the appropriate circumstances the Family Court has the power to make the anti-suit injunction which the wife sought in this case … nor that the source of such power was, as his Honour explained … either s 34 of the Act or the inherent (or, we would add, implied) jurisdiction of the Family Court “to make orders which are necessary and appropriate to avoid injustice”. …
Our survey of the authorities suggests that the Full Court has never given close consideration to the question of the precise source of power for the grant of an anti-suit injunction in the Family Court of Australia. The nearest it came was in B v B (Re Jurisdiction), where the court found there was no statutory basis for granting a stay. And as we have argued above, the logical extension of that finding is that the counterpart power to grant an anti-suit injunction does not arise from s 34 of the federal Act.
An alternative analysis is that the implied power of any court to grant relief to prevent its processes being abused, and to protect the integrity of its processes, has been merely confirmed or “comprehended” by s 34. Support for this view comes from authority concerning s 23 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), which is in the same terms as s 34 (save for the reference to interlocutory orders):
23 Making of orders and issue of writs
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.
Section 23 was considered in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, where the majority of the High Court said at 396 (footnotes omitted):
33.Whilst s 23 of the Federal Court Act empowers the Federal Court to make “orders of such kinds, including interlocutory orders ... as the Court thinks appropriate”, the Federal Court is not thereby authorised to grant injunctive relief where jurisdiction is acquired under another statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction. Nor does s 23 provide authority for the granting of an injunction where, whether under the general law or by statute, otherwise there is no case for injunctive relief. …
Importantly, at [41], the majority approved a passage from Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612 at 623, in which Deane J said that the power to prevent the abuse or frustration of a court’s process should be accepted “as an established part of the armoury of a court of law and equity” and that “the power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is comprehended by the express grant [contained in s 23 of the Federal Court Act]”. Although Deane J referred to “a court of law and equity”, the authorities earlier mentioned establish that the power to prevent an abuse or frustration of process is held by all courts.
We recognise that the majority in Cardile v LED Builders Pty Ltd had earlier said this (emphasis added, all footnotes other than 48 omitted):
26.In Jackson v Sterling Industries Ltd, Deane J referred to the armoury of a court of law and equity to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction. By this means, the risk of the stultification of the administration of justice is diminished. Once the source of power is recognised, then, whatever may be the limitations with respect to inferior courts (48), in the case of the Federal Court the power will be seen to be comprehended by the express grant in s 23 of the Federal Court Act.
Footnote 48 was in the following terms:
See the remarks of Dawson J in Grassby v The Queen(1989) 168 CLR 1 at 16-17 as to the powers of inferior courts enjoyed by implication.
As the High Court in Cardilev LED Builders Pty Ltd was concerned with the powers of a superior court, it was unnecessary for their Honours to consider the powers of an inferior court such as the FCWA. But we find nothing in [26] of their reasons, or the accompanying footnote, to suggest that an inferior court requires a conferral of power similar to that in s 23 of the Federal Court Act in order to grant relief to prevent the abuse or frustration of its processes.
In our view, the federal Act provides what the High Court has called “an exhaustive code of available remedies”, and we therefore consider it arguable that the power of the Family Court of Australia to grant an anti-suit injunction arises from a source other than s 34. However, given that this appeal is concerned only with the FCWA, it is unnecessary to decide the point. It is sufficient for present purposes to say that there is strong authority for the proposition that an anti-suit injunction may be granted by the Family Court of Australia in the exercise of its inherent or, more correctly, its implied powers.
For the sake of completeness, we note that in Deputy Commissioner of Taxation v Kliman (2002) FLC 93-113, a Full Court left open whether s 34 gives power to grant “Mareva” orders (which are also orders designed to protect a court’s processes). A Full Court had earlier said, in Waugh and Waugh (2000) FLC 93-052 at [32], that s 34 may be an alternative source of power to s 114(3) for a Mareva order. In Mullen and De Bry (2006) FLC 93-293, having cited from Waugh, a Full Court proceeded at [46] on the basis that the power to grant a Mareva order comes from the injunctive power in s 114(3) (but the Full Court did not refer to ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, where the High Court laid down the principles relating to interlocutory injunctions).
Significance of s 42(1) of the federal Act for the FCWA
Although not mentioned in argument, s 42(1) of the federal Act may shed light on the reason for the omission from the State Act of a provision equivalent to s 34. At the very least, s 42(1) seems highly relevant in assessing whether it was intended that a State Family Court would have fewer powers than those given to the Family Court of Australia in exercising the same jurisdiction.
Subsection 42(1) provides:
42 Law to be applied
(1)The jurisdiction conferred on a court, or with which a court is invested, by this Act shall be exercised in accordance with this Act and the applicable Rules of Court.
(2)…
Subsection 42(1) falls within Pt V, which has the heading “Jurisdiction of courts”. Although “jurisdiction” in the strict sense means “authority to decide”, it is often used in other senses, “some relating to geography, some to persons and procedures, others to constitutional and judicial structures and powers”: Leeming, p 1. Reference to individual provisions of Pt V shows it has a reach much wider than mere “authority to decide”.
Subsection 42(1) is directed to “a court” and thus, by force of the definition in s 4(1), applies to any court exercising jurisdiction conferred by the federal Act. Significantly (in our view at least), it follows immediately after s 41, which authorises the establishment of State Family Courts.
Given the terminology used in s 42(1), and the structure of the federal Act, we agree with the learned authors of LexisNexis Butterworths, Australian Family Law, vol 1, [42.1] that the purpose of s 42(1) “is to ensure that State Courts invested with federal jurisdiction under the Act exercise that jurisdiction in accordance with the Act, the Regulations and the Rules”.
On this reading, s 42(1) is not concerned so much with “the law to be applied”, as the heading might suggest, but rather with the way in which the jurisdiction is to be “exercised”. If so, the heading is more apt for s 42(2), which deals with the application of foreign law. The reference in s 42(1) to the jurisdiction being exercised in accordance with “applicable Rules of Court” supports this reading, as Rules of Court clearly could not impact on “the law to be applied”.
Given s 42(1) expressly states that the jurisdiction conferred by the federal Act is to be exercised in accordance with that Act, we consider that s 42(1) evinces a clear intention that all courts exercising jurisdiction under that Act will have the same powers, save to the extent varied by statute.
Support for this view can be found in a judgment delivered in the first weeks of operation of the federal Act by a judge who is accepted as one of its principal architects. In Lythow and Lythow , Watson J said at 75,074:
Section 42 of the Family Law Act provides that the Court shall exercise its jurisdiction in accordance with the Act. When compared with sec 25(2) of the repealed [Matrimonial Causes] Act it will be seen that there is a clear indication by Parliament that the present Act should provide its own code of law in matrimonial causes; …
This interpretation does not mean that the common law and state laws are irrelevant to matters within the jurisdiction of the Family Courts – on the contrary see s 79 and s 80 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).
Section 80 of the Judiciary Act provides as follows:
80 Common law to govern
So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.
The relevance of the preservation of the common law, insofar as it concerns the implied powers of courts, was recognised in DS and DS (2003) FLC 93-165, where Federal Magistrate Ryan (as her Honour then was) said:
48. Section 80 of the Judiciary Act 1903 (Cth) incorporates the common law jurisprudence on implied powers. In RvMosely (1992) 28 NSWLR 735, the Court of Appeal when considering the powers of the State Magistrate’s Court held:
“Where a Court has jurisdiction under a statute and no provision was made in the statute for the making of an order which is necessary to carry the Court’s statutory power into effect, the Court, although it does not have an inherent power, has an implied power.”
49. Although those comments relate to a State Magistrate’s Court, and in spite of the differences between State Magistrate’s Court and the Federal Magistrate’s Court, the comments are apposite. R v Mosely is consistent with the NSW Court of Appeal’s earlier decision in TringalivStewardson, Stubbs & Collette Pty Ltd (1966) 66 SR (NSW) 335. At 344 their Honours said:
“The power of each Court over its own process is unlimited. It is the power incident to all Courts, inferior as well as superior. Was it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful consideration.”
Conclusions about the powers of the FCWA
In Project Blue Sky IncvAustralian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ said at [69] (footnotes omitted):
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
Construing the subject matter, scope and purpose of the State and federal Acts, we find a clear intention that a State Family Court should have precisely the same powers in the exercise of federal jurisdiction as the Family Court of Australia. Since it is accepted that the Family Court of Australia has the power to grant an anti-suit injunction, we consider the FCWA has the same power. Lest reference to extrinsic sources be thought necessary, we have considered the permissible sources and conclude they all point in the same direction.
The argument advanced for the husband would have the surprising result that a remedy available to a litigant in every other state would not be available to a litigant in Western Australia (at least without first applying to the Supreme Court, as was suggested by counsel for the husband (appeal transcript, 28 October 2014, p 11)). In our view, such an outcome would be inconsistent with the clear legislative intent that there should be one national law governing matrimonial matters, even if that law is administered by an assortment of federal and state courts. It would also appear to be inconsistent with the principle of “legal coherence” which has been enunciated by the High Court in recent years: see Michael Gillooly, ‘Legal coherence in the High Court: String theory for lawyers’ (2013) 87 Australian Law Journal 33; and Elise Bant, ‘Statute and common Law: Interaction and influence in light of the principle of coherence’ (2015) 38(1) University of New South Wales Law Journal 367.
In arriving at our decision, we have not overlooked the decision of the Full Court of the Supreme Court of Western Australia in Murcia & Associates (a firm) v Grey (2001) 25 WAR 209, on which counsel for the husband strongly relied. In that case, it was found that the District Court of Western Australia lacked power to prevent solicitors from representing a party in proceedings before the District Court on the basis of a conflict of interest. Respectfully assuming that the case was correctly decided (as to which see the strong dissent of Pidgeon J), we regard the statutory framework and the facts as being so far removed from the present matter as to be of no assistance.
In any event, the majority in Murcia & Associates would clearly have reached a different decision if they considered that the order restraining the solicitors was “in any relevant sense ancillary to the relief sought in the money claim between the [parties]” (per Steytler J at [20], with whom Wallwork J agreed at [9]).
Subsequently, the Western Australian Court of Appeal has confirmed that the District Court has “such powers as are reasonably incidental to the exercise of its statutory jurisdiction”: Rowe v Stoltze (2013) 45 WAR 116 at [28]. An application for special leave to appeal from this decision was refused: Rowe v Stoltze [2013] HCATrans 221 (12 September 2013).
Section 114(3) of the federal Act – Another basis for an anti-suit injunction?
Lest we are wrong in concluding that the FCWA has the same implied power as the Family Court of Australia to grant an anti-suit injunction, we should record that we consider there is a strong argument that the FCWA can also grant such relief by relying on the power conferred by s 114(3) of the federal Act. This subsection, which undoubtedly applies to the FCWA, relevantly provides that:
(3)A court exercising jurisdiction under this Act in proceedings … may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
As noted earlier, a Full Court has recently held that this subsection provides power to the Federal Circuit Court to grant an anti-suit injunction. If that is so, then FCWA must have the same power, since s 114(3) applies to all courts exercising jurisdiction under the federal Act. We observe, however, that it was unnecessary for the Full Court in Galloway & Midden (No 2) to explain the basis upon which it arrived at its view concerning the reach of s 114(3).
In Monticelli & McTiernan at 82,174, Nicholson CJ and Fogarty J alluded to s 114(3) as a possible source of power to grant an anti-suit injunction, but found it unnecessary to decide the point. Subsequently, two judges of the Family Court of Australia treated s 114(3) as providing the power: Schaeffer & Schaeffer [2005] FamCA 934 per Rose J at [19] and Fayad & Fayad [2005] FamCA 1320 per O’Ryan J at [123].
In Smith and Saywell (1980) FLC 90-856, a Full Court accepted that s 114(3) provides power to grant an injunction restraining a third party from pursuing proceedings in another court. In our view, the logical extension is that s 114(3) must also provide power to grant a similar injunction directed against a party.
Nevertheless, as this issue appears not to have been the subject of careful consideration, we propose to give our own reasons for concluding that s 114(3) may provide a basis for granting an anti-suit injunction. In doing so we must make clear that the topic was not the subject of full argument, since the relevance of s 114(3) was only raised from the bench during submissions. Thus, for example, we did not have the benefit of submissions about the relevance to s 114(3) of the principles discussed in ABC v Lenah Game Meats.
We begin by noting that, in the early years of operation of the federal Act, Nygh J said in Burridge and Burridge (1980) FLC 90-902 at 75,680-1:
Section 114 … is an extension of the injunctive power traditionally possessed by equity courts. It permits the granting of injunctive relief where such relief could not previously have been granted.
This proposition, at least insofar as it concerns s 114(3), must be read in light of subsequent authority such as Cardile v LED Builders Pty Ltd, where the majority said this about a statutory conferral of power to grant an injunction (footnotes omitted):
31However, in England, it is now settled by several decisions of the House of Lords that the power stated in Judicature legislation – that the court may grant an injunction in all cases in which it appears to the court to be just and convenient to do so – does not confer an unlimited power to grant injunctive relief. Regard must still be had to the existence of a legal or equitable right which the injunction protects against invasion or threatened invasion, or other unconscientious conduct or exercise of legal or equitable rights. …
In R v Ross-Jones; Ex parte Green at 199-200, Gibbs CJ (with the concurrence of Mason J) made these observations about s 114 (footnotes omitted):
The section means what it says; it confers power which the Court may exercise only if it already has jurisdiction – it does not confer jurisdiction … The provisions of s 114, which are precisely limited as they are, no doubt to ensure that they do not exceed constitutional power, cannot be extended by resort to the so-called inherent jurisdiction. Such inherent jurisdiction as the Family Court may have could not go beyond protecting its function as a court constituted with the limited jurisdiction afforded by the Act…
In the same case, Dawson and Wilson JJ said at 208-9 (footnotes omitted):
Section 114 of the Act gives to the Court a wide power to grant injunctions, both in proceedings referred to in para (e) of the definition of “matrimonial cause” and in other proceedings. The power given in other proceedings is exercisable in “any case in which it appears to the court to be just or convenient to do so”, but it is clear that it is only to be exercised in aid of the jurisdiction otherwise conferred on the Court and that it does not enlarge the ambit of that jurisdiction. That is to say, the power to grant injunctions may only be exercised in cases otherwise within the jurisdiction of the Court…
R v Ross-Jones; Ex parte Green involved an injunction which had been sought to restrain a third party from enforcing a judgment obtained in another court. The High Court concluded that the Family Court of Australia lacked jurisdiction in the matter and hence lacked the power to grant the injunction. As Gibbs CJ said at 202-3, “the proceedings … did not form part of any controversy in relation to which the Court was seized with jurisdiction”.
In the present matter, unlike the position in R v Ross-Jones, it is not in doubt that the FCWA had jurisdiction to entertain the substantive application. Hence, we consider it arguable that the court had power pursuant to s 114(3) to grant the anti-suit injunction, since the injunction was inextricably related to the dispute that brought the matter within the court’s jurisdiction.
In forming this view, we have been guided by what was said by the High Court in Antonarkis v Delly (1976) 51 ALJR 21 at 24 concerning s 124 of the Matrimonial Causes Act 1959 (Cth), which was in almost identical terms to the current s 114(3). The High Court characterised the power under s 124 as available to be “granted in aid of an exercise of jurisdiction under the Act”. In doing so, their Honours cited with approval Wallace P’s dicta in HornevHorne (1963) 63 SR(NSW) 121 at 135 that the “power is limited to aiding, enforcing or protecting the proper and due exercise of the matrimonial causes jurisdiction or the provisions of the Act”. See also SandersvSanders (1967) 116 CLR 366 at 372, and Short v Crawley (No 46) [2013] NSWSC 1624 in the context of a similar statutory provision.
Finally, we note that in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 33, the majority in the High Court said (footnote omitted):
The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked.
In our view, an order made by an Australian court in properly constituted matrimonial proceedings, restraining a party from pursuing a claim in a foreign court designed to abort the proceedings must be seen as “aiding … or protecting the proper and due exercise of the matrimonial causes jurisdiction” and thus ensuring “the effective exercise of the jurisdiction”.
Accordingly, in addition to relying on the court’s implied powers, we consider it may have been open to the primary judge to have relied upon s 114(3).
The FCWA’s equitable jurisdiction (or lack thereof)
The primary judge did not refer to s 114(3). Instead, her Honour relied on an equitable jurisdiction as providing an alternative source of power to grant the anti-suit injunction. We now turn to consider the husband’s argument that she erred in doing so (noting that if her Honour did err, she was led into error by the submissions of counsel who then appeared for the husband).
Senior counsel for the wife, in his submissions before us, offered no more than token support for the proposition that the FCWA can exercise equitable jurisdiction. He instead argued that her Honour principally relied on inherent jurisdiction. Although we are not persuaded this is so, nothing turns on it, since a court needs only one source of power, and her Honour’s decision based on the implied power of the court was clearly reached independently of the decision based on an equitable jurisdiction.
This part of the complaint can be disposed of simply by accepting that the FCWA is a statutory court and therefore cannot grant equitable relief unless authorised by statute. As an equitable jurisdiction has not been conferred by statute, it has long been accepted that the FCWA cannot exercise the powers of a court of equity: J and J (1979) FLC 90-718 at 78,869. (We put to one side the powers available to the court when exercising accrued jurisdiction.)
Notwithstanding what the primary judge said at [70], the wife did not rely at the hearing below on the FCWA having an equitable jurisdiction. The wife’s argument was correctly recited at [41] to [49], where it was said that the proceedings in Singapore were vexatious. This submission did not depend on the FCWA having an equitable jurisdiction. Rather, the argument relied on “the traditional power to stay proceedings … on inappropriate forum grounds [which] is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process”: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554.
Since the power to grant an anti-suit injunction is the counterpart of the power to grant a stay, it was open to the wife to argue that the injunction should be granted on the grounds of “vexation”, without needing to rely on principles of equity. The primary judge appeared to accept that argument at [90] and [91]; albeit when summarising her conclusions at [92], her Honour used the language of equity, which was not the basis on which the injunction was sought.
Conclusions concerning Ground 1
The FCWA has an implied power to make orders to prevent its processes being abused and to protect the integrity of its processes once set in motion. The power does not depend on the court having equitable jurisdiction: Cigna at 392; ABC v Lenah Game Meats at [94]-[95]; Lederer and Hunt at [58].
Although the primary judge said at [92] that she was relying (in part) upon an “inherent” power to grant the anti-suit injunction, her Honour was clearly using “inherent” as a synonym for “implied”. In any event, so long as her Honour had power to make the order, it does not matter whether she labelled it correctly. For the reasons we have given, her Honour had the requisite power.
We also consider the FCWA may have power to grant an anti-suit injunction pursuant to s 114(3). Her Honour’s failure to refer to s 114(3) is not fatal to it being relied upon, if required, to maintain the order under appeal. Conversely, her Honour’s erroneous acceptance of the proposition that she could exercise equitable jurisdiction is not a basis for setting aside the order.
Ground 1 therefore fails.
Matters unnecessary to discuss in disposing of Ground 1
In disposing of Ground 1, it is unnecessary to engage with the arguments of counsel for the husband concerning the existence of any accrued jurisdiction in the FCWA. The anti-suit injunction was not made on the basis of reliance on such a jurisdiction, nor is it now sought to be supported on that basis. (References in the submissions to “accrued jurisdiction” were clearly inadvertent.)
It is also unnecessary to engage with the husband’s arguments concerning any “extra-territorial jurisdiction” of the FCWA, since the order here was made in personam against the husband, who was properly served within the jurisdiction. The fact the order will impact upon proceedings in a foreign jurisdiction does not mean the order has extra-territorial effect. Indeed, as Thomas Raphael has said in The Anti-Suit Injunction (Oxford University Press, 2008), pp 76-7, “[i]t is an essential feature of the anti-suit injunction that it is sought and granted against the injunction defendant personally, and does not purport to restrain the foreign court, nor directly to affect the foreign proceedings in themselves”.
We also decline to discuss s 57 of the Trustees Act1962 (WA), which imposes an obligation on a trustee to “obtain the directions of the Court … as to the manner in which the opposing interests are to be represented”. The husband did not raise this issue before the primary judge, and there is no impediment to him doing so when the matter is next mentioned in the FCWA proceedings.
The second question in the appeal
The second question to be considered is whether, assuming she had the power to do so, the primary judge erred in granting the anti-suit injunction. This issue is addressed in a variety of ways in the remaining grounds of appeal.
Ground 2 – Ability of the FCWA to determine all aspects of the dispute
This ground challenges the finding that all aspects of the dispute could be determined in the FCWA proceedings.
We will discuss the complaint by reference to its three “Particulars”, namely:
(a)the Deed … was governed by the law of the Republic of Singapore;
(b)the Deed … created trusts domiciled in, and over real property located in, the Republic of Singapore;
(c)the proceedings in … Singapore included the validity of the Deed … the trusts over property located in … Singapore and the rights and interests of beneficiaries (which included people not parties to the proceedings in the Family Court of Western Australia), as a matter of law of the Republic of Singapore.
(a) The choice of law clause
Clause 15 provides that the Deed is to be governed and construed in accordance with the laws of Singapore. However, this does not mean that only Singaporean courts can adjudicate upon it. Indeed, it does not even constitute a submission to the jurisdiction of the courts of Singapore: Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 259; Akai Pty Ltd v People’s Insurance Co Limited (1996) 188 CLR 418 at 424-5.
The following remarks of French J (as his Honour then was) in Green v Australian Industrial Investment Ltd (1989) 25 FCR 532 at 543 are apt here, where the wife relies upon an Australian statute in seeking to set aside the Deed in which the choice of law clause appears (emphasis added):
Clause 22 of the share sale contract provides that it is to be governed by the laws of England, but that of itself does not prevent this Court from exercising jurisdiction … nor does the agreement to submit to the jurisdiction of the English courts, although such a clause may be a powerful factor in favour of the grant of a stay … Where there is an exclusive jurisdiction clause embodied in a contract, the exercise of a discretion to refuse to give effect to that clause may require justification of a different order from that needed in a case where the plaintiff has simply chosen to sue in one forum rather than another: Oceanic Sun Line at 231. The relevant clause of the share sale agreement, not being an exclusive jurisdiction clause, will not give rise to as high a threshold of persuasion against a stay as in the case of an exclusive jurisdiction clause … And where an applicant bona fide claims relief under the Trade Practices Act in relation to misleading or deceptive conduct said to have induced entry into the contract, then the foreign tribunal clause will be given considerably less weight. For such a claim calls into question the basis upon which the contract was formed and in any event, invokes a statutory jurisdiction and remedies from which there is no contractual escape.
If the Deed is set aside, the choice of law clause falls away. But if the Deed is not set aside, there would be no impediment to the FCWA applying the laws of Singapore if appropriate, since s 42(2) of the federal Act provides that:
Where it would be in accordance with the common law rules of private international law to apply the laws of any country or place … the court shall … apply the laws of that country or place.
Accordingly, the existence of the choice of law clause does not mean that the FCWA cannot decide all aspects of the dispute.
(b) The creation of trusts over real property in Singapore
Counsel for the husband submitted that the FCWA is required to recognise the validity of the Deed, citing as authority the Trusts (Hague Convention) Act 1991 (Cth). He conceded that no reference had been made to this legislation before the primary judge. In any event, the argument is misconceived given that the federal Act confers power to set aside a “disposition”, which is defined by s 106B(5) to include the creation of an interest in a trust.
(c) The effect on third party beneficiaries
The husband submitted that the FCWA:
is not able to determine the validity of the claims, interests and status of beneficiaries, including the children, under the Deed of Family Arrangement and trusts. First, the children are not parties to the proceedings. Second, that form of action is one solely in equity. Third, the governing law is that of Singapore.
We have explained the lack of merit in the argument concerning the choice of law clause; however, the rest of this submission is equally devoid of merit.
First, the s 106B application is not directed to determining the validity of the interests of beneficiaries, but rather to setting aside the Deed. We accept that the outcome may have a significant impact on third parties, but this is usually the case with s 106B. Importantly, the court is obliged by s 106B(3) to “have regard to the interests of … a bona fide purchaser or other person interested”.
Secondly, regardless of whether the Deed is set aside, the s 79 claim will require determination (since it is conceded the Deed is ineffective in purporting to exclude the jurisdiction of the FCWA). In disposing of the s 79 claim, the FCWA will deal only with the assets of the husband and the wife. True it is that the court will need to resolve any dispute as to whether third parties have an interest in the assets; however, the court routinely engages in that process by reference to accepted principles of common law and equity.
Thirdly, the fact the children have not yet been joined is a red herring. The wife concedes that the children are necessary parties to the substantive proceedings and accepts they will be joined: Family Law Rules 2004 (Cth), r 6.02. The children had been given notice of the claim prior to the first return date, but were not necessary parties to the Application in a Case because no relief was sought against them in that application. The distinction between the substantive claim and the interim application was noted by her Honour at [45].
Fourthly, the wife’s claim is not an action in equity. It is made pursuant to s 106B and s 79. Although determination of the s 79 claim will necessarily involve findings concerning the legal and equitable ownership of the assets, this does make the claim anything other than one made pursuant to statute.
The balance of the arguments advanced under this heading concerning the inferior status of the FCWA, the geographical limitation on its jurisdiction and its ability to apply foreign law have been dealt with elsewhere.
For these reasons, we find no merit in Ground 2.
Ground 3 – Finding that the FCWA was not a clearly inappropriate forum
By this ground it is asserted that the primary judge erred in law and fact in finding that the FCWA is not a clearly inappropriate forum.
Counsel for the husband first submitted that her Honour’s finding that FCWA was not a clearly inappropriate forum “does not disclose a process of reasoning to consider the issues raised as to the ‘Mozambique Rule’ and the determination of interests in foreign property”.
We accept that her Honour did not engage with the following submission of counsel for the husband concerning British South Africa Co v The Companhia de Mocambique [1893] AC 602 (transcript, 7 April 2014, p 11):
There are a number of more recent Family Court Full Court decisions that have also had to deal with the issues of anti-suit and the issues of proceedings in other jurisdictions.
Substantive one [sic] is a matter of Whung … [2011] FamCA 137, where there is a long and detailed discussion in relation to the issues of anti-suit applications, appropriate forums and the like in that regard. And it also includes a discussion in that document in relation to the Moçambique rule, which makes it plain that the English and Australian courts will not exercise jurisdiction to determine ownership of foreign land because any such controversy can only be determined in the states in which it depends.
Although the primary judge briefly mentioned this submission at [57], she did not discuss it. Clearly it was not persuasive, since her Honour found that the FCWA could determine all aspects of the dispute.
Had her Honour engaged with the submission, she would no doubt have observed that Whung v Whung (2011) 45 Fam LR 269:
·was not a decision of the Full Court as suggested by counsel, but rather a decision of a single judge;
·dealt with the issue only in obiter, as acknowledged by the judge; and
·concerned different facts, and different relief, in circumstances where those differences were material to the observations made by the judge.
We also observe that counsel for the husband, at the hearing below, failed to draw her Honour’s attention to the following highly relevant passage from the article by Dr Anthony Dickey QC, ‘Orders in respect of foreign property under section 79’ (1993) 67 Australian Law Journal 538, which the judge in Whung v Whung had not only cited, but also described as “apt” (emphasis added):
It may be objected that an order under s 79 cannot be made in respect of foreign property as this offends the common law jurisdictional bar on domestic courts adjudicating upon rights to foreign land as laid down in British South Africa Co v Companhia de Mocambique ([1893] AC 602). It now seems clear, however, that this jurisdictional limitation does not apply to proceedings under s 79, as the rule in the Mocambique case concerns proceedings only to determine existing title to, or existing right to possession of, foreign land. Proceedings under s 79 are of a different character. They concern rights arising from a matrimonial relationship, even though these rights may ultimately involve the disposition of foreign land. This point was made in respect of equivalent English proceedings by the Court of Appeal in Hamlin v Hamlin ([1986] Fam 11 at 21). The Family Court may nonetheless always decline in the exercise of its discretion to make an order under s 79 in respect of foreign land. It may do so, for example, if the order cannot be enforced in the foreign jurisdiction…
For a judicial analysis of the limited application of the Moçambique rule in s 79 proceedings, see Chen & Tan [2012] FamCA 225 per Kent J at [16]-[22]; and see also Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 9th ed, 2014), pp 79-82. For present purposes, it is sufficient to say that we agree with senior counsel for the wife that the husband’s argument fails to recognise that:
·orders in s 79 proceedings are made in personam and not in rem: Caddy and Miller (1986) FLC 91-720 at 75,231; and
·the court is obliged to take into account all of the property, wherever located: Pastrikos and Pastrikos (1980) FLC 90-897 at 75,654.
Counsel for the husband next submitted that her Honour failed to consider that the proceedings in Singapore “are trust proceedings, not matrimonial proceedings, and are therefore not the same controversy as the [FCWA] proceedings”. This proposition is patently wrong insofar as the proceedings in Singapore expressly seek to prevent the wife from pursuing matrimonial proceedings in the FCWA. It is true that the husband’s claim in Singapore also formally seeks a declaration of the validity of the Deed, which does contain declarations of trust; but nothing advanced by the husband suggests that this application had any real purpose other than to provide a platform from which to launch the application to abort the wife’s claim in the FCWA.
Counsel for the husband also provided a long list of matters said to demonstrate error in the finding that the FCWA was not a clearly inappropriate forum. Many of these involve propositions of law which we have found to be erroneous. We are not persuaded that reference to the remaining matters demonstrates error in the exercise of her Honour’s discretion.
Counsel for the husband also submitted that her Honour had “placed reliance on factors that were irrelevant or of no relevant weight”. The first of these factors was the finding at [80] that the FCWA proceedings were first in time. The initial matter to be noted here is that the primary judge did not refer to the order in which proceedings were commenced as a stand-alone matter. Her Honour immediately went on to find in the same paragraph that “[t]he husband has participated in these proceedings” (which in turn stands to be considered with the fact that the husband had failed to complain about the forum at the directions hearing in the FCWA).
We accept that the order in which proceedings is commenced is not a factor that would ordinarily attract much, if any weight, when the second proceedings are commenced relatively soon after the first. However, when allied with the finding that the FCWA is able to resolve the entire issue, we do not consider it erroneous to refer to that fact. We observe that while counsel for the husband supported this complaint by referring to what Brennan CJ said in Cigna at 379-380, he failed to refer to what the majority of the High Court later said in Henry v Henry at 592, namely that the order in which proceedings are commenced is a factor to be considered.
The second matter the husband says should not have been given weight was the finding at [84] that the FCWA proceedings were “properly instituted”. Counsel pointed to the fact that in cases such as Cigna, both sets of proceedings were properly instituted. We see no error in her Honour having noted that the proceedings were properly instituted, as clearly there would have been a different outcome if they were not. Furthermore, there is no suggestion that her Honour placed any more weight on the fact that the jurisdiction of the court had been properly invoked than the majority in Henry v Henry at 588-9 considered permissible.
Thirdly, the husband argued that her Honour should not have given weight to the finding at [83] that there was a juridical advantage to the wife in litigating in the FCWA. Counsel submitted that this was relevant only to whether the FCWA proceedings should be stayed, whereas in the case of an anti-suit injunction, the question is whether there is a juridical advantage to the other party in pursuing the foreign proceedings. This argument overlooks the fact that her Honour’s finding was made in that part of her discussion dealing with whether the FCWA was a clearly inappropriate forum. Counsel for the husband’s own argument proceeded on the basis that determination of whether the FCWA is a clearly inappropriate forum was “a preliminary question to be satisfied” before determining whether an anti-suit injunction should be made.
There is no merit in this ground.
Ground 4 – Singaporean proceedings not vexatious or oppressive
By this ground it is asserted that the primary judge erred in law and in fact in finding that the existence of the husband’s proceedings in Singapore was vexatious or oppressive.
The submissions in support of this ground focus entirely on [90] of the reasons; proceed on an assumption that her Honour had concluded that the existence of parallel proceedings was in itself vexatious or oppressive; and proceed on the further assumption that her Honour considered that because the FCWA proceedings should not be stayed, it followed that an order should be made restraining the proceedings in Singapore. Consideration of [87] to [89] of her Honour’s reasons demonstrates that neither of these assumptions is correct.
The husband further argued that the subject matter of the two proceedings was not the same, but we reject that proposition for the same reason her Honour did. It is significant, in our view, that the only substantive relief sought in Singapore was a declaration that the Deed is “valid, effectual and binding”. There was no live issue concerning that question until the husband received notice of the wife’s intention to pursue a claim in the FCWA. The husband’s application therefore appears to be entirely responsive to the wife’s application, which provides support for the view that the same issue is raised in the two courts.
The following observations of the majority in Henry v Henry at 591 are apt (footnotes omitted):
It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the legal proceedings are oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging” or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.
The husband further submitted that in considering whether the Singaporean proceedings are vexatious, it is material to consider that the Deed has been partially performed, as the wife has received half of her entitlement. We are not entirely sure what difference this makes (save to the separate question of estoppel). In any event, it would seem at least equally important to take into account the uncertainty we perceive about when the wife would ever receive the balance of her entitlement, since examination of the Deed suggests that this is entirely dependent upon the happening of future uncertain events or payment at a time suitable to the husband.
Counsel for the husband was even so bold as to submit that it was the wife’s institution of proceedings in the FCWA that was vexatious and oppressive, because it constituted a “second attempt at a division of matrimonial assets”. The proposition in our view is absurd, given it is conceded the Deed is neither a bar to proceedings in Singapore, nor in Australia. Indeed, s 132(1) of the Singaporean Women’s Charter also provides for the setting aside of the Deed.
There is no merit in this ground.
Ground 5 – Failing to take account of relevant considerations
This ground asserts that the primary judge erred in law in failing to properly take into account relevant matters in granting the injunction.
The overarching complaint was that, having decided the FCWA was not a clearly inappropriate forum, the primary judge confined her deliberation of the merits of the anti-suit injunction to an assumption that the existence of the marital relationship creates a single controversy.
Her Honour dealt with this matter in the context of disposing of the husband’s submission that there were “not simultaneous proceedings in relation to the same controversy” and that “the issues are quite distinct” (at [60]). We were not informed of any other argument put to the primary judge that she failed to consider. In any event, her Honour did not rely only on her finding that there was only one controversy. At [90], she also relied on her findings concerning whether the FCWA was a clearly inappropriate forum. While we accept the husband’s argument that the considerations relevant to whether the court is a clearly inappropriate forum are not the same as those applicable to an anti-suit injunction, there is clearly some crossover.
Ground 5 is otherwise supported by “Particulars” that ran to over three pages. Many of these repeat propositions we have already rejected. Some are best left for trial. Others raise propositions not put to the primary judge. Some are so lacking in merit as to not warrant discussion (the best example being the alleged interference in the sovereignty of Singapore and its judicial system).
The remaining propositions, considered collectively, are not such as to persuade us that her Honour erred. Nevertheless, we will make some brief observations about three discrete issues raised by the husband.
The first draws attention to the failure of the wife to provide an undertaking as to damages. Counsel for the husband conceded that no undertaking had been sought by the husband, nor was the primary judge asked to take into account the fact that no undertaking had been proffered. We consider these concessions fatal to the complaint: Blueseas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856 at [46]-[57].
Secondly, we can find no basis for the complaint that the injunction “in effect would inhibit (if not effectively prohibit) the Husband from dealing with properties, investments, and borrowings in Singapore”. The husband’s rights (and those of the children) to deal with the property remain completely unaffected by the injunction.
The third issue draws attention to the wife’s failure to seek a stay of proceedings in Singapore. This does not advance the argument, since there is no obligation to seek a stay in the foreign jurisdiction before seeking an anti-suit injunction in the domestic jurisdiction: Cigna at 396.
Ground 6 – Error in finding the wife had a valid s 106B claim
By this ground it is asserted that the primary judge erred in law in finding that the wife had a valid claim to set aside the Deed pursuant to s 106B.
This complaint falls at the first hurdle because her Honour did not make such a finding. Her Honour merely found at [84] that the wife had “properly instituted these proceedings” and at [92] that there was a “serious issue to be tried”. Furthermore, it is erroneous for counsel to assert, as he did, that the wife’s claim is predicated upon setting aside the Deed. That proposition cannot be sustained in light of the concession that the Deed is not a bar to proceedings in the FCWA (putting to one side the estoppel argument, which could be pursued only at trial, as the husband did not seek interim relief).
In support of this ground, counsel for the husband also argued that, to obtain the anti-suit injunction, the wife bore the onus of satisfying the court that the s 106B claim gives rise to a “serious question to be tried”. He submitted that, absent a “serious question to be tried”, there does not exist sufficient basis for a conflict between the claims in the two courts such as to justify the granting of an injunction. In asserting that there was no “serious question to be tried”, counsel advanced an argument not advanced before the primary judge; namely that s 106B is directed to the setting aside only of an instrument by “a party” and not an instrument such as the one here which was entered into by both parties. We find nothing in the terms of s 106B to indicate it should be read as restrictively as counsel for the husband proposes, but that is a matter for trial.
The husband further argued that there was no evidence that, at the time the Deed was executed, it was anticipated an order would be made by the FCWA. This proposition was also not advanced before the primary judge and, with the greatest of respect to counsel for the husband, overlooks much of the jurisprudence surrounding s 106B.
Like other arguments advanced by the husband, this ground also overlooks that the wife has a claim under s 79 which can proceed regardless of the outcome of the s 106B application. The orders sought by the husband in the proceedings in Singapore, if granted, would prevent the wife from pursuing that claim.
Counsel for the husband also submitted in support of this ground (and other grounds), that the anti-suit injunction “seeks to exclude” the operation of the Foreign Judgments Act 1991 (Cth). This argument fails to take account of the fact that by virtue of s 3, that Act does not apply to proceedings that are a matrimonial cause or are “in connection with matrimonial matters” – which the proceedings in Singapore clearly are, since they seek to confirm the validity of a Deed which purports not only to effect a settlement of property between spouses, but also to exclude the jurisdiction of any court to determine any further claims to “matrimonial assets”.
This ground lacks merit.
Ground 7 – Failure to properly exercise the discretion
By this ground it is asserted that the primary judge “erred in law in the exercise of discretion to grant an order for an injunction … which order was in the circumstances unreasonable or plainly unjust and therefore amounted to a failure to properly exercise the discretion”.
The arguments advanced in support of this ground constitute little more than a reiteration of propositions advanced in relation to other grounds. However, the husband did submit under this ground that there would be (unspecified) advantages in obtaining a Singaporean judgment determining title to, and interests in, property located in Singapore. The flaw in this proposition is that there does not appear to be any dispute about the existing legal or equitable ownership of any of the assets in Singapore.
There is no merit in this ground.
Ground 8 & 9 – The finding that the Deed was irrelevant
By these grounds it was asserted that if the primary judge was right in finding that the validity of the Deed was irrelevant to the FCWA proceedings, then:
·her Honour erred in law in restraining the husband from prosecuting proceedings designed to determine the validity of the Deed; and
·the injunction should not have extended beyond restraining the husband from seeking an anti-suit injunction in Singapore.
Again, this argument falls at the first hurdle because her Honour simply did not find that the Deed was “irrelevant” in the FCWA proceedings.
We accept her Honour did say:
39The validity of the Deed is irrelevant to this application. At best it is a common law agreement of the kind considered by the Full Court in Burgoyne & Burgoyne (1978) FLC 90-467 and Candlish & Pratt (1980) FLC 90-819, to be given appropriate weight at the time of property settlement. The wife seeks to set aside the Deed under s 106B of the Act but at its highest, the validity of the deed in no way “stymies” her application for property settlement.
However, this paragraph was contained in the part of her Honour’s judgment where she was merely reciting arguments that had been put on behalf of the wife. At no point did her Honour say she accepted the argument. Although she clearly accepted that the Deed was not a bar to the wife’s claim, this does not suggest she considered the Deed was “irrelevant”, since manifestly it would be highly relevant if not set aside.
It was also conceded that it had not been suggested to the primary judge that one option was for her to restrain the husband from pursuing his anti-suit injunction in Singapore, but leaving unaffected his application for a declaration of the validity of the trust. In any event, nothing advanced by counsel for the husband suggested that the application for a declaration was anything other than a platform from which to launch the application for an anti-suit injunction.
Accordingly, while we accept the argument that the relief should be restricted to only what is required, the injunction did not exceed that scope.
Conclusion on the second question in the appeal
We have found no merit in any of the grounds directed to the exercise of discretion. As Ground 1 also lacked merit, the appeal will be dismissed.
Costs
In accordance with the usual practice, we took costs submissions at the conclusion of argument.
The wife sought costs in the event the appeal was dismissed. At one point, counsel for the husband conceded the husband should pay the wife’s costs if the appeal failed, but then seemed to shy away from that concession.
The appeal having been entirely unsuccessful, we consider the husband should pay the wife’s costs, to be assessed, if not agreed.
I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray & Crisford JJ) delivered on 21 May 2015.
Associate:
Date: 21 May 2015
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