UNDERWOOD & UNDERWOOD
[2017] FamCAFC 267
•15 December 2017
FAMILY COURT OF AUSTRALIA
| UNDERWOOD & UNDERWOOD | [2017] FamCAFC 267 |
| FAMILY LAW – APPEAL – INTERIM ANTI-SUIT INJUNCTION – Where the applicant wife seeks leave to appeal against the order granting an interim injunction enjoining her from continuing to seek any orders in proceedings commenced by her in the United States of America (“USA”) – Where no submissions were made by the wife at the original hearing as to the form of the proposed injunction or the prejudice she would suffer by the granting of the interim injunction – Where the point in the current case is that there has not yet been a hearing of the competing applications in relation to the substantive matters, and the primary judge was just looking to preserve the subject matter of the proceedings until the hearing could take place – Where on the face of the material before the primary judge there were proceedings in Australia and the USA between the same parties involving the same controversy the continuation of one or the other of which was prima facie vexatious or oppressive in accordance with the test laid down in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 – Where the approach adopted by the primary judge was therefore appropriate – Where, apart from the costs of returning to court to seek a variation or setting aside of the interlocutory order, the wife could point to no other prejudice – Leave to appeal refused FAMILY LAW – COSTS – Where the husband sought an order that the wife pay his costs of and incidental to the application, but that payment should be delayed until finalisation of the proceedings – Where the wife has been wholly unsuccessful in that leave to appeal has been refused – Where the appeal was one that should never have been brought – Costs ordered as sought |
| Family Law Act 1975 (Cth) Family Law Regulations 1984 (Cth) |
| CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 In Re The Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 Medlow & Medlow (2016) FLC 93-692 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
| APPLICANT: | Ms Underwood |
| RESPONDENT: | Mr Underwood |
| FILE NUMBER: | SYC | 1170 | of | 2017 |
| APPEAL NUMBER: | EA | 46 | of | 2017 |
| DATE DELIVERED: | 15 December 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Aldridge & Carew JJ |
| HEARING DATE: | 3 November 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 April 2017 |
| LOWER COURT MNC: | [2017] FamCA 378 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Elliot SC |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan |
| COUNSEL FOR THE RESPONDENT: | Mr Beaumont SC with Mr Hand |
| SOLICITOR FOR THE RESPONDENT: | Pearson Emerson Meyer Family Law |
Orders
The Application to adduce further evidence in the appeal be dismissed.
Leave to appeal be refused.
The wife pay the costs of the husband of and incidental to the application for leave to appeal with such costs to be assessed in default of agreement and payable within 14 days of the finalisation of all proceedings between the parties in the Family Court of Australia.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Underwood & Underwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 46 of 2017
File Number: SYC 1170 of 2017
| Ms Underwood |
Applicant
And
| Mr Underwood |
Respondent
REASONS FOR JUDGMENT
Introduction
On 10 April 2017 Johnston J granted an interim injunction enjoining Ms Underwood (“the wife”) from continuing to seek any orders in proceedings commenced by her by Summons and Petition for Dissolution filed on 23 January 2017 in the Circuit Court of B County, Illinois, County Department, C Division in the United States of America (“USA”).
This is an application for leave to appeal, and if leave is granted, an appeal against the order granting the injunction. The application and the appeal are opposed by Mr Underwood (“the husband”).
An application by the wife to adduce further evidence in the appeal was not pressed and will be dismissed.
Background
The parties to this appeal married in October 1993, and separated on 2 January 2017. Although both born in Australia they lived and worked in the USA in 2014 and 2015. In June 2015 the wife and the parties’ children returned to live in Australia. The husband continues to live and work in the USA but returned to Australia on a number of occasions in 2015 and 2016.
In the proceedings commenced by the wife in the USA in January 2017 she was seeking orders in relation to the dissolution of the marriage, parenting, child support, spouse maintenance, provision for legal fees and property settlement.
On 24 February 2017 the husband filed a response to the proceedings commenced by the wife in the USA, challenging the jurisdiction of the court to entertain the wife’s proceedings and alternatively seeking a stay or dismissal of those proceedings on forum non conveniens grounds. Also on that date the husband commenced proceedings in Australia seeking orders in relation to property settlement, parenting and an anti-suit injunction against the wife in respect of the USA proceedings. That application was listed in the judicial duty list on 10 April 2017.
On 2 March 2017 an order was made in the USA proceedings that the parties continue to provide discovery and return to court on 21 April 2017.
The wife sought the production of documents by way of subpoena from the husband’s employer and partner in the USA. On 31 March 2017 the husband filed a Motion seeking to quash the subpoena.
On 29 March 2017 the solicitors acting for the wife advised the solicitors acting for the husband that they only had instructions in parenting matters and suggested that the parenting proceedings be adjourned pending mediation.
On 7 April 2017 (a Friday) the wife filed a Response in the Australian proceedings in which she sought a stay of the financial aspect of the proceedings on forum non conveniens grounds. The wife also sought a parenting order, conceding jurisdiction to this Court in relation to that issue.
On 10 April 2017 the husband’s Application came before Johnston J in a judicial duty list and the injunction against the wife was granted until further order. It is apparent on the face of the record that his Honour’s intention was for the injunction to be in place for a short period until the hearing of the competing ‘forum’ arguments (“the substantive matters”). The order ultimately made, included provisions, by consent, for the filing of material in readiness for a hearing of the substantive matters. Given the proposed timetable consented to by the parties the listing of the matter for hearing was to occur not before 1 June 2017.
On 5 May 2017 the wife filed her Notice of Appeal (later amended on 8 September 2017).
On 25 July 2017 the wife succeeded in an application to vary the interim injunction to allow her to take steps to defend or oppose the Motion filed by the respondent in the USA in which the husband sought summary judgment in the wife’s proceedings on the grounds that the court had no jurisdiction to entertain the claim.
The reasons for granting the injunction
The primary judge delivered ex tempore reasons for judgment which succinctly stated:
11.What the husband is seeking is an injunction to restrain the wife from continuing the US proceedings but only to operate for a brief period until these proceedings can next be before the Court. On the basis of the material before the Court which establishes that the parties have strong connecting factors with Australia, including that they and their children were all born here, they have property here and the wife and children are currently residing here, in my view, the husband presents an arguable case for his opportunity to ventilate his application in this Court in respect of forum.
12.It is said on behalf of the wife that there are interlocutory matters of some urgency in the US, those matters going to discovery and inspection in the US proceedings. I must say I have not been persuaded that those matters are of such great importance and immediacy that the Court needs to determine the forum issue at this point.
13.It is said that the wife is seeking to have the proceedings in Australia stayed, at least so far as they relate to financial issues. My understanding is that the wife also seeks bifurcation of the proceedings. In other words, notwithstanding having filed her application in the US which appears to include seeking orders about parenting arrangements for the children, the wife now asks this Court apparently to determine the parenting aspect of this matter, and the parties would then remain at issue about forum only in respect of financial matters.
14.In all the circumstances, in my view, the husband has made out his application for the injunction.
In the context of the original hearing it is important to appreciate the following:
a)The hearing of the substantive matters was to be listed once the timetable for filing material was completed by the parties;
b)No submissions were made that the wife would suffer any prejudice by the granting of the interim injunction;
c)No submissions were made by the wife as to the form of the proposed injunction i.e. that there should be any limitation to the restraint.
Leave to appeal
As the order appealed from is an interlocutory order, leave to appeal is required (see s 94AA of the Family Law Act 1975 (Cth) (“the Act”) and reg 15A of the Family Law Regulations 1984 (Cth)).
The Full Court in Medlow & Medlow (2016) FLC 93-692 at [57] recently held:
We are of the opinion that, subject to the caveat just discussed, [that in appropriate cases the test or guideline will give way to the particular interests of justice in that case] the test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
(emphasis in original)
The wife contends in her Notice of Appeal that leave should be granted for the following reasons:
1.The applicant raises important issues of principle in relation to the approach to be taken in interlocutory proceedings where a forum dispute exists;
2.These principles have wide application or are of general importance;
3.The applicant contends that the interlocutory orders under appeal work a substantial injustice upon her as they may work to pre-judge the issue and affect the ability of her to succeed in her contentions at a final hearing.
The written submissions filed by the wife do not specifically address the leave issue but the senior counsel for the wife articulated the argument for leave as follows:
a)The learned Judge at first instance failed to identify and follow the correct principles to be applied when determining an application for interlocutory anti suit injunctive relief:
· His Honour determined that there ought be an interlocutory anti-suit injunction that would operate until such time as there was a further hearing on the question of whether a final anti-suit injunction should be granted.
· The order was interlocutory because what the husband sought was a final anti-suit injunction that would forever restrain the wife from pursing the proceedings in the USA, and the order that was made was interlocutory because it would operate until such time as that final application was heard and determined.
b)The order made gave rise to substantial injustice because it prevented the wife from exercising her right to pursue proceedings in the forum of her choice.
c)The learned trial Judge failed to consider and take into account a critical consideration namely that of comity. Although the order was not directed to the foreign court, as the authorities recognise the practical effect of the order made was to interfere with the progress of the proceedings in the USA.
d)Parties and their practitioners need to be able to have confidence that this court will decide matters a) on evidence and b) in accordance with legal principle. The interlocutory anti-suit injunction was granted on no evidence.
Reliance was placed on the well-known High Court authority of CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 which sets out the principles to be applied when considering whether or not to grant an interlocutory anti-suit injunction. Those principles are not in contention. Particular reliance was placed upon this statement (at 397):
Thus, an interlocutory anti-suit injunction is effectively a final determination as to where the matter or some particular aspect of it is to be litigated.
However, the point in the current case is that there has not yet been a hearing of the competing applications in relation to the substantive matters, and his Honour was just looking to preserve the subject matter of the proceedings until that hearing could take place.
The matter came before the primary judge in a duty list and on the face of the material before the Court there were proceedings in Australia and the USA between the same parties involving the same controversy the continuation of one or the other of which was prima facie vexatious or oppressive in accordance with the test laid down in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554.
The approach adopted by the primary judge was therefore appropriate.
The delay in finalisation of the substantive matters is a consequence borne entirely from the timetable agreed to by the parties. Indeed the matter is still not ready for hearing and it was the wife who specifically sought time to prepare including to enable her to obtain expert evidence.
Apart from the costs of returning to Court to seek a variation or setting aside of the interlocutory order, the wife could point to no other prejudice. Indeed the wife has already succeeded in varying the order to enable her to participate in proceedings to which she is a respondent in the USA. Thus, it was not open to her to rely on any prejudice in that regard.
Accordingly, we are not satisfied that the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and, even if it were, we are not satisfied that substantial injustice would result if leave were refused, supposing the decision to be wrong.
As submitted by the husband’s senior counsel, the decision of the primary judge is “a paradigm example of the kind of decision on a point of practice and procedure the subject of the oft-cited remarks of Jordan CJ in In re the Will of F.B. Gilbert (dec) (1946) 46 SR (NSW) 318 at 323, being in that class of case where “if a tight rein were not kept upon interference with the orders of judges at first instance, the result would be disastrous to the proper administration of justice”.
Leave to appeal will be refused.
Costs
At the conclusion of the hearing submissions were sought on the question of costs, depending on the outcome of the application for leave to appeal, and of course, if leave was granted, the outcome of the appeal.
In the event that leave was refused, the wife submitted that costs should follow the cause, whereas the husband submitted that the wife should pay the costs of and incidental to the application, but that payment should be delayed until finalisation of the proceedings.
Pursuant to s 117 of the Act, a costs order can be made where there are circumstances that justify the same. Here, there is such a circumstance, namely the wife has been wholly unsuccessful in that leave to appeal has been refused. Further, we are of the view that the appeal was one that should never have been brought. Accordingly, we propose to make the order sought by the husband.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Carew JJ) delivered on 15 December 2017.
Associate:
Date: 15 December 2017
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