VALLEY and VALLEY
[2005] FCWA 98
•20 SEPTEMBER 2005
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: VALLEY and VALLEY [2005] FCWA 98
CORAM: THACKRAY J
HEARD: 29 AUGUST 2005
DELIVERED : 20 SEPTEMBER 2005
FILE NO/S: PT 1097 of 2001
BETWEEN: PHILLIP VALLEY
Applicant
AND
PAUL VALLEY
First RespondentSUSAN VALLEY
Second Respondent
Catchwords:
Jurisdiction - accrued jurisdiction of the Family Court of Western Australia.
Practice & procedure - joinder, intervention or right to be heard - summary disposition of proposed claim of third party - notice to Attorneys - General pursuant to Judiciary Act.
Appeal - from decision of Magistrate.
Legislation:
Acts Interpretation Act 1901, s 38
Commonwealth of Australia Constitution Act, s 71, s 75, s 76, s 77
Family Law Act 1975, s 31, s 33, s 39, s 41
Family Court Act 1997, s 9, s 35, s 36,
Judiciary Act 1903, s 39, s 78B, s 79
Category: Reportable
Representation:
Counsel:
Applicant: Mr H Moser
First Respondent : Mr R Butcher
Second Respondent : Mr P Dowding SC
Solicitors:
Applicant: Tan & Tan
First Respondent : Butcher Paull & Calder
Second Respondent : Holden Barlow
Case(s) referred to in judgment(s):
Ascot Investments Pty Ltd v Harper and Harper (1981) FLC 91-000
ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136
Barro and Barro (1983) FLC 91-300
Bigg v Suzi (1998) FLC 92-799
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
DJL v The Central Authority (2000) FLC 93-015
Ferrall & McTaggart (trustees for Sapphire Trust) and Ors v Blyton (2000) FLC 93-054
Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541
Moorgate Tobacco Co. Ltd. v Philip Morris Ltd. (1980) 145 CLR 457
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
R v Ross-Jones; ex parte Green (1984) 156 CLR 185
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Ridley v Whipp (1916) 22 CLR 381
Rowley & Sloan & Quinto Nominees Pty Ltd (FCWA, unreported 19 January 2004)
Smith and Saywell (1980) FLC 90-856
Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261
Warby & Warby (2002) FLC 93-091
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1I am required to determine the Appeal of [Phillip Valley] (“the son”) against a decision of a Magistrate made on 16 May 2005, dismissing his application for leave to intervene in the proceedings. Before the Court also is the Application of [Paul Valley] (“the husband”) seeking an order that the son be joined as a second respondent in the proceedings. [Susan Valley] (“the wife”) seeks the dismissal of the son’s Appeal and the husband’s Application.
Background
2The husband and wife were married in 1998 after various periods of cohabitation. The son is a child of the husband’s first marriage. The husband and son are the directors of [Horizon Pty Ltd], which is trustee of the [Horizon Trust] (“Horizon”).
3The wife commenced proceedings in February 2001, seeking orders for property settlement and spousal maintenance. She also applied for injunctions relating to the assets of Horizon. In April 2001 the wife was given leave to withdraw her application.
4On 23 August 2004 the wife filed a fresh application, seeking an order that the husband cause Horizon’s interest in a property at [Coastal Town G] to be transferred to her, together with a variety of other orders by way of property settlement. At the same time, the wife filed an application seeking injunctions in relation to Horizon. On 5 October 2004, the husband filed a response.
5On 12 October 2004 the Court received a Form 2 Application from the son. The file copy suggests it was filed on 1 November 2004, but this would appear to be a clerical error. In any event, the son sought orders that:
(a)he be given leave to be heard on the application and response of the husband and the wife;
(b)his interest in the assets of Horizon “be noted in the court records in respect of this proceedings” [sic];
(c)“if necessary”, he be given leave to intervene in the proceedings.
6The son’s application came before the Court on 14 October 2004 and was adjourned, with liberty to relist. The husband and wife were ordered to attend a conciliation conference on 4 February 2005. Neither the husband nor the wife filed a response to the son’s application and were not formally directed to do so.
7The parties were unable to reach agreement at the conciliation conference. The file note indicated that it was understood the son would be relisting his application to intervene. The matter was adjourned to a pre-trial conference on 15 June 2005.
8On 1 April 2005 the son filed a Form 1 Application seeking the following orders:
“1.There be a declaration that Horizon Pty Ltd as Trustee of the Horizon Trust holds 50% of all assets, liabilities and resources standing in its name or held on its behalf in trust for Phillip Valley.
2.In the alternative to 1, a declaration that the husband and the wife are estopped from denying that Phillip Valley is beneficially entitled to 50% of all assets, liabilities and resources standing in the name or held on behalf of Horizon Pty Ltd as trustee of the Horizon Trust.
3.An order that Horizon Pty Ltd as Trustee of the Horizon Trust transfer to Phillip Valley or his nominee(s) 50% of all assets, liabilities and resources standing in its name or held on its behalf.
4.Such consequential orders as may be necessary to give effect to the orders made under 1, 2 or 3 above.
Such other orders for accounts enquiries, directions or otherwise as the Court may deem appropriate.
5.Costs.”
9The proceedings came before the learned Magistrate on 16 May 2005. His Worship dismissed the son’s Form 1 and Form 2. In doing so he recognised there had not been a hearing on the merits of the matter. His intention was to give the son an opportunity to file an Appeal so there would be a hearing de novo before a Judge.
10The son duly filed his Appeal on 14 June 2005. He proposed the following orders:
“1.The Appellant be given leave to be heard in the property settlement proceedings between the 1st and the 2nd Respondents in relation to his interest in the Horizon Trust.
2.In the alternative to 1, the Appellant be granted leave to intervene in these proceedings.
3.The 1st Respondent pay the Appellant’s costs of this appeal and of the application below.”
11The Appeal was listed for directions on 4 July 2005. I adjourned the proceedings for hearing on 29 August 2005. At the suggestion of counsel, I ordered each party to file and serve an outline of submissions three clear days prior to the hearing.
12On 4 July 2005 the husband filed an application seeking that the son be joined as a second respondent to the substantive proceedings and also seeking an order that the son’s claim be heard at the same time as the wife’s application. The husband’s application was listed for hearing with the Appeal on 29 August 2005.
13The written submissions of the husband and the son were received on25 August 2005. In response to prompting from my Associate, what passed for the wife’s outline of submissions was filed on 26 August 2005. Those submissions were little more than one page in length and made no reference to relevant statutory provisions or case law.
14The matter came before me on 29 August 2005. Counsel for the husband and son expanded on their written submissions. Senior Counsel for the wife, who conceded he had not drawn the wife’s initial submissions, handed up supplementary submissions during the course of his address in reply.
15The supplementary written submissions of Senior Counsel for the wife raised very important questions, including whether or not the Family Court of Western Australia has the same accrued jurisdiction as the Family Court of Australia. The submissions can be summarised as follows:
1.The question of whether or not the Family Court of Western Australia has an accrued jurisdiction is a contentious issue, not yet determined by a decision of this Court.
2.In the event the Family Court of Western Australia does have an accrued jurisdiction, the principles for the exercise of that discretion laid down by the Full Court in Warby & Warby would apply.
3.The evidence provided to date does not show a prima facie case for relief to be granted in favour of the son.
4.In the event the Court considers the son had a prima facie case, the appropriate course would be for him to institute proceedings in the Supreme Court of Western Australia and seek the transfer of those proceedings to this Court pursuant to the “cross‑vesting legislation”.
16Senior Counsel for the wife also submitted that the question of whether or not the Family Court of Western Australia has an accrued jurisdiction “involves a matter arising under the Constitution or involving its interpretation” and that accordingly the proceedings should be adjourned to allow notice to be given to the Attorneys-General of the Commonwealth and the States pursuant to s 78B of the Judiciary Act 1903.
17Had these submissions been provided to the other parties three clear days prior to the hearing, as previously ordered, counsel could have prepared an argument in rebuttal. Regrettably, because no adequate notice was given, these important matters were not fully ventilated.
Does the Family Court of Western Australia have an accrued jurisdiction?
18Senior Counsel for the wife made his submission in these terms:-
“Whilst we do not contend that the matter is settled, we draw attention of the Court to the proposition that the accrual of jurisdiction under the Judiciary Act 1903 (Cth) is a jurisdictional structure that exists for Federal Courts exercising federal jurisdictions; or Federal Courts exercising Federal and State jurisdictions, but it is contentious whether it applies to a State Court exercising Federal jurisdiction.”
19The concept of “accrued jurisdiction” was discussed in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, where Barwick CJ said (at 475):-
“It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has in the first place attracted federal jurisdiction. It extends, in my opinion, to the resolution of the whole matter between the parties. This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution. For this purpose, the court exercising federal jurisdiction may enforce rights which derive from a non-federal source. This exercise of this jurisdiction, which for want of a better term I shall call “accrued” jurisdiction, is discretionary and not mandatory, though it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter.”
20The Full Court has determined that the Family Court of Australia has an accrued jurisdiction when hearing matters under the Family Law Act 1975: Warby & Warby (2002) FLC 93-091. However, there has been no authoritative determination as to whether the Family Court of Western Australia has a similar jurisdiction when dealing with matters pursuant to the same Act.
21Writing prior to the decision of the Full Court in Warby, Michael Brown had this to say in his article on the accrued jurisdiction of the Family Court of Australia in Australian Family Lawyer, (Spring 2001 edition at page 12):-
“Accrued jurisdiction in the Family Court is a little bit like the Lithgow Panther. There have been unconfirmed reports of it over the years and even the occasional footprint, dropping or fuzzy photograph. We know it exists elsewhere – in the wilds of the Federal Court for example; but we family lawyers are none too sure that it could exist near our home town. And the powers that be, who should really ought to know (ie The Full Court) have stuck to their line that they “neither confirm or deny” its existence.”
22Counsel for the son drew my attention to rumours of a sighting of the elusive Panther in a first instance decision in this Court. Further tracking revealed that Barlow J delivered an ex tempore judgment in the matter of Rowley & Sloan & Quinto Nominees Pty Ltd (FCWA, unreported 19 January 2004). His Honour’s reasons have not been settled and have therefore not been published. However, they suggest that the Respondents did not join issue with the submission made on behalf of the Applicant that the Family Court of Western Australia has an accrued jurisdiction. His Honour said:
“the issue for determination by me is not whether this Court has jurisdiction but whether it should, in the exercise of its discretion, exercise such jurisdiction”.
23Parties cannot confer jurisdiction on the Court by consent: Ridley v Whipp (1916) 22 CLR 381 at 386. Barlow J must therefore have been satisfied he had accrued jurisdiction to deal with the dispute before him. However, since the matter was not argued, his Honour cannot be seen as having determined the issue authoritatively.
24I am also aware that Martin J has reserved her decision in a case in which the same jurisdictional issue has been raised. Interestingly, I understand that Senior Counsel for the wife in the present proceedings has submitted in the proceedings before her Honour that the Family Court of Western Australia does have an accrued jurisdiction.
25I have already noted the unsatisfactory manner in which the submissions were made on this issue. Furthermore, Senior Counsel for the wife did not positively assert that the Family Court of Western Australia lacks an accrued jurisdiction. In these circumstances, I do not consider this to be an appropriate occasion on which to make a concluded finding on an issue of considerable importance. However, I will make some preliminary observations to indicate why I consider it is highly probable that the Family Court of Western Australia does have an accrued jurisdiction. If the wife wishes to advance a different view, she can do so at trial.
26The starting point is s 71 of the Constitution, 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”.
27Section 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 s 75 and s 76 of the Constitution, the Parliament may make laws “investing any court of a State with federal jurisdiction”. The Family Law Act 1975 is one such law.
28Jurisdiction under the Family Law Act 1975 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.
29The position in Western Australia is quite different and has been since the commencement of the Family Law Act 1975. 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.
30The 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, which repealed the Family Court Act 1975. The Court works alongside the Magistrates Court of Western Australia, which has jurisdiction throughout the State (subject to special arrangements existing in the Perth metropolitan area).
31Section 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”.
32At the time the Family Law Act 1975 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 1975 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…”.
33Section 41(2) of the Family Law Act 1975 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 1975, 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”.
34By 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 1975 and has also the non-federal jurisdictions conferred on it by the Family Court Act 1997 and other Acts.
35It is important also to note the provisions of s 39(2) of the Judiciary Act 1903, which is in the following terms:
“The several Courts of the States shall within the limits of their several jurisdictions … be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38 and subject to the … conditions and restrictions [specified in s 38]… .”
36The reference to matters in which the High Court has original jurisdiction or could have original jurisdiction conferred on it is a reference to s 75 and s 76 of the Constitution. I have already noted that s 77 allows the Commonwealth Parliament to make laws investing any Court of a State with federal jurisdiction with respect to any of the matters mentioned in s 75 and s 76 of the Constitution, and that the Family Law Act 1975 is one such law.
37The proceedings between the husband and wife are a matrimonial cause instituted under the Family Law Act 1975. Hence, in resolving their property dispute, the Court is dealing with a matter within its federal jurisdiction.
38I turn now to some relevant authorities and academic writing concerning the position of State courts exercising federal jurisdiction.
39It is convenient to begin by referring to the case drawn to my attention by Senior Counsel for the wife. In ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559, Gleeson CJ, Gaudron and Gummow JJ said (at para 7):
“A State Court receives State jurisdiction under the constitution and the laws of that State. It may also be invested with federal jurisdiction by a law made by the Parliament under s 77(iii) of the Constitution; section 39(2) of the Judiciary Act 1903 (Cth) is an example of such a law. The federal courts established by the Parliament, the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court, exercise their jurisdiction, necessarily federal, by reason of its conferral by laws enacted under section 77(i) of the Constitution. A “matter” in respect of which that jurisdiction is conferred may, in a given case, include claims arising under common law or under the statute law of a State. But the jurisdiction invoked remains, in respect of all the claims made in the matter, “wholly” federal; even in a State court “there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State court would have had” and “there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction in the State court”. These terms were used by Barwick CJ in Felton v Mulligan.”
40Reference could also have been made to Re Wakim; Ex parte McNally (1999) 198 CLR 511 and Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136.
41These authorities make clear that if the Family Court of Western Australia has an accrued jurisdiction, and proceeded to deal with the son’s claim, it would not be exercising federal and state jurisdiction but only federal jurisdiction. As Professor Zines has said in Federal Jurisdiction in Australia (3rd edition at 222):-
“Federal jurisdiction is properly viewed from the standpoint of the source of authority to adjudicate, not from the standpoint of the subject-matter of adjudication.”
42In other words, the Family Court of Western Australia would obtain its authority to resolve the son’s claim by virtue of the investiture of jurisdiction pursuant to the Family Law Act 1975, not because the Court happens to be a State Court.
43This is not a novel proposition. For example, in Moorgate Tobacco Co. Ltd. v Philip Morris Ltd. (1980) 145 CLR 457 at 471-472, Gibbs J (as he then was) said (footnotes and case references omitted and emphasis added):-
“And the power of the Parliament to invest a State court with federal jurisdiction, which includes a power to impose conditions on the exercise of the jurisdiction so invested, must extend to ensure that the exercise of the jurisdiction and observance of the conditions are made effective.
This conclusion is, I think, supported by a consideration of the extent of the jurisdiction with which a State court is invested when the Parliament makes laws under s. 77 (iii.) of the Constitution. It is well established that where the High Court is invested with jurisdiction to determine a matter of a particular kind, the Court is "clothed with full authority essential for the complete adjudication of the matter" and not merely for the decision of the matter which attracted jurisdiction… In other words, once the jurisdiction is attracted, the Court can deal with all questions necessary to be dealt with to enable the case to be finally disposed of, except such matters as are severable and distinct from that which attracted jurisdiction. This principle has been recognized in a number of cases… In my opinion, a similar principle applies when a State court is invested with federal jurisdiction. By the investiture, the State court acquires jurisdiction to deal with all matters necessary to determine the whole case (except matters which are severable and distinct from that which attracted jurisdiction). The consequence is that (except as to severable "non‑federal" questions, to use the words of Walsh J. in Felton v. Mulligan the court will exercise federal jurisdiction in the whole case. The jurisdiction does not cease to be federal, because the matter that attracted jurisdiction is either not dealt with, or is decided adversely to the plaintiff. Where there is no severable "non-federal" question, the State court is invested with federal jurisdiction to hear and determine the whole case, and s. 109 of the Constitution prevents the inconvenient result that the State court will exercise concurrently State and federal jurisdiction...”
44It would be a most regrettable outcome if the Family Court of Western Australia was unable to “deal with all matters necessary to determine the whole case”. Indeed, it would be a very odd outcome, and a serious flaw in the scheme designed to give each State the option of continuing to administer matrimonial law through its own courts. As Mason, Brennan and Deane JJ said in Stack v Coast Securities(No 9) Pty Ltd 154 CLR 261 at 293-294:
“A central element in this design for the exercise of the judicial power of the Commonwealth is the power given to Parliament to make a choice between conferring federal jurisdiction on federal courts which it creates and investing federal jurisdiction in State courts. There is no indication in Ch. III that the making of this choice was to be strongly weighted against the creation of federal courts in favour of investing federal jurisdiction in State courts, as it would be if the Constitution were to deny power to give authority to federal courts to decide the whole of a single justiciable controversy of which a federal issue forms an integral part. … That approach would, contrary to settled authority, preclude this Court in its original jurisdiction from deciding non-severable claims having their origin in State law. It would, again contrary to settled authority, restrict Parliament to the creation of federal courts lacking jurisdiction to determine such claims, thereby inhibiting their capacity as effective elements in the court system for which Ch. III makes provision. The preferable approach from the viewpoint of principle is that established by authority, namely, to regard Ch. III as empowering the Parliament to make sensible and practical dispositions for determination of justiciable controversies by either of the two means for which Ch. III makes provision.”
45Academic commentators have no doubt that State courts exercising federal jurisdiction have an accrued jurisdiction. For example, Professor Lane, in his Commentary on the Australian Constitution (2nd edition at page 623), in discussing matters arising from s 77(iii) of the Constitution, concluded:-
“A s 77(iii) State Court is as much favoured by the doctrine of accrued jurisdiction as is the High Court or another federal Court.”
46In the case of the Family Court of Western Australia, Professor Lane went even further, when he said (in a footnote at page 509):-
“… the Family Court of Western Australia for example, is not restricted to federal jurisdiction, drawing jurisdiction from State sources, as well; there is no need to invoke an accrued jurisdiction.”
47There may be some doubt as to whether Professor Lane’s last proposition is entirely accurate in light of the limitations implicit in s 36(1) of the Family Court Act 1997 and the comments of the High Court quoted above. It is important to keep in mind the obvious “inconvenient result” referred to by Gibbs J in Moorgate Tobacco if this Court were to purport to exercise state and federal jurisdiction simultaneously.
48Bernard Cairns has also said in Australian Civil Procedure (5th edition at page 7):-
“distinguishing between accrued and federal jurisdiction is usually of little importance for a State Court exercising federal jurisdiction because non‑federal accrued jurisdiction is also State jurisdiction.”
49There is of course some importance attached to the identification of the jurisdiction being exercised – principally in considering the appropriate avenue of appeal and issues relating to the operation of s 79 of the Judiciary Act 1903.
50Finally, the learned Western Australian authority, Anthony Dickey QC, had this to say about the jurisdiction of the Family Court of Western Australia in Family Law (4th edition at page 115);
“Although there is no reported decision yet on point, it would seem reasonable to conclude that if the Family Court of Australia has accrued jurisdiction, the Family Court of Western Australia also has accrued jurisdiction, thereby enabling it to resolve any non-federal aspects of controversies involving the exercise of its federal jurisdiction.”
51The Family Court of Western Australia is a creature of statute and hence a court of limited jurisdiction. In my view, in light of what has already been said by the High Court and the Full Court of the Family Court of Australia, the only issue in doubt is whether there is something about the relevant statutory provisions that prevents the Family Court of Western Australia from exercising the accrued jurisdiction that can be exercised by federal courts when exercising federal jurisdiction and by other State courts when exercising federal jurisdiction.
52The Family Court of Australia is also a creature of statute. Unlike the Family Court of Western Australia, it is a superior court of record, but even so it is a court of limited jurisdiction: R v Ross-Jones; ex parte Green (1984) 156 CLR 185 at 215 and DJL v The Central Authority (2000) FLC 93-015 at 87,268.
53The jurisdiction of the Family Court of Australia is conferred, in part, by s 31(1)(a) of the Family Law Act 1975, which is in these terms:-
“Jurisdiction is conferred on the Family Court [of Australia] with respect to…matters arising under this Act …in respect of which matrimonial causes are instituted …under this Act.”
54It will be remembered from the discussion above that, by virtue of s 39(5) of the Family Law Act 1975, the Family Court of Western Australia, is also invested:
“with federal jurisdiction … with respect to matters arising under this Act in respect of which…matrimonial causes are instituted under this Act…”.
55Save that the Commonwealth Parliament (acting in accordance with the express words of the Constitution) “conferred” jurisdiction on the Family Court of Australia, whereas it “invested” the Family Court of Western Australia with jurisdiction, the relevant statutory provisions are, for all material purposes, identical. Nothing was advanced in the submissions to suggest any reason why the decision in Warby should not have the same application in this Court as it does in the Family Court of Australia, in circumstances where the jurisdiction of the two courts is derived from the same source and is expressed in identical terms.
56Throughout the history of the Family Law Act 1975, the Commonwealth Parliament has evinced a clear intention to ensure that to the maximum extent permitted by the Constitution, the jurisdictions of the Family Court of Australia and the Family Court of Western Australia are the same. The most pertinent example is the Family Law Amendment Act 1983, which extended the jurisdiction of both courts beyond “matrimonial causes” to “matters arising” under the Family Law Act 1975 “in respect of which matrimonial causes are instituted or continued”. This is of particular relevance, since the 1983 amendments were relied upon by the Full Court in Warby to support the conclusion that the Family Court of Australia has an accrued jurisdiction.
57I recognise that the jurisdictions of the Family Court of Australia and the Family Court of Western Australia are not entirely the same. However, there is no reason to consider that the omission from the Family Court Act 1997 of provisions such as s 31(1)(d) and s 33 of the Family Law Act 1975 should lead to a different result.
58Section 31(1)(d) confers jurisdiction on the Family Court of Australia with respect to “matters…with respect to which proceedings may be instituted in the Family Court under this Act or any other Act”. The meaning of s 31(1)(d) is not altogether clear. However, it is expressly directed to proceedings instituted under an “Act”. It is therefore of no relevance to the present discussion, since by operation of s 38 of the Acts Interpretation Act 1901 it can only relate to Acts of the Commonwealth Parliament.
59Section 33 of the Family Law Act 1975, which applies only to the Family Court of Australia, is in these terms: -
“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 or any law to be conferred on the Court that are associated with matters (including matters before the Court upon an appeal) in which the jurisdiction of the Court is invoked or that arise in proceedings (including proceedings upon an appeal) before the Court.”
60 This section is also of no relevance to the present discussion, as it has been found to confer jurisdiction only “in a federal matter which is associated with another federal matter …”: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (supra at 516). See also Anthony Dickey QC, ‘Jurisdiction Without Tears: A Guide to the Jurisdiction of the Family Court of Western Australia’ (1994) 24 UWAL Rev 17 at paras 23 and 24.
61I have also taken into account the fact that the Family Court Act 1997 does not contain the powers granted to the Family Court of Australia by s 34 of the Family Law Act 1975. Questions remain about the scope of s 34. However, the interpretation of s 34 (and hence the significance of its omission from the Family Court Act 1997) “bear upon the discretion to exercise an accrued jurisdiction which otherwise exists rather than whether the jurisdiction itself exists”: Warby & Warby (supra at 88,791).
62Finally, I should note I have found it unnecessary for the purposes of this discussion to consider the implications of the new Part VIIIAA of the Family Law Act 1975, and in particular s 90AE(2), which permits the Court to make an order that “alters the rights, liabilities or property interests of a third party in relation to the marriage”.
63For these reasons, although I consider this issue should await an authoritative decision on another occasion, I proceed to determine the Appeal on the basis it is highly arguable that the Court has the accrued jurisdiction necessary to resolve the son’s claim.
Should notice be given under the Judiciary Act?
64I turn now to the proposition of Senior Counsel for the wife that the question of whether or not the Family Court of Western Australia has an accrued jurisdiction “involves a matter arising under the Constitution or involving its interpretation” and that the Court must therefore adjourn the proceedings to allow notice to be given to the Attorneys-General.
65With respect to Senior Counsel, I am not convinced such a matter has been raised. The Court has undoubted federal jurisdiction to deal with the dispute between the husband and the wife. The only controversy is whether or not the Court, as a State Court, has an accrued jurisdiction to hear what otherwise would be considered a state matter. The fact that this Court has jurisdiction to deal with matters pursuant to a law made under s 77(iii) of the Constitution does not mean that an issue relating to the extent of the Court’s jurisdiction is a “matter” arising under the Constitution or involves its interpretation in the sense intended by s 78B of the Judiciary Act 1903: Stack v Coast Securities (No. 9) Pty Ltd (supra per Gibbs CJ at 281) and Smith and Saywell (1980) FLC 90-856 at (75,430 per Watson SJ, with whom Marshall SJ agreed).
66There is no constitutional doubt that the Commonwealth Parliament may make laws investing State courts with federal jurisdiction. It is also now authoritatively established that when a State court exercises its accrued jurisdiction whilst dealing with a federal claim, it is exercising a wholly federal jurisdiction. Once those propositions are accepted, I find it difficult to understand how a constitutional issue arises. When Barwick CJ described the concept of accrued jurisdiction as being “settled doctrine in Australia” in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (supra at 475), he did not confine his remarks to federal courts but, instead spoke of courts “which can exercise federal jurisdiction”. Mason J (as he then was) used precisely the same expression in the same case when discussing the ability of courts to determine what he described as an “attached claim” (supra at 512).
67It follows from the views I have expressed above that the decision about the existence of an accrued jurisdiction in the Family Court of Western Australia turns on a question of statutory interpretation. It is therefore not an issue in which the Attorneys-General would have any immediate interest. I also observe that it does not appear to have been suggested in the proceedings before the Full Court in Warby that notice be given to the Attorneys-General (albeit the Full Court did observe that the High Court had authoritatively determined that the Federal Court of Australia has an accrued jurisdiction and went on to say (at 88,769), “[t]he constitutional dimensions of the grant of jurisdiction to federal courts are uniform”).
68I am aware that in Ferrall & McTaggart (trustees for Sapphire Trust)andOrs v Blyton (2000) FLC 93-054 notice was given to the Attorneys-General in a pre‑Warby case involving consideration of the accrued jurisdiction of the Family Court of Australia. The reason for notice having been given is not apparent, but it is noted there were many other important issues raised in those proceedings that arguably activated s 78B of the Judiciary Act 1903. The Full Court in Ferrall & McTaggart ultimately considered it unnecessary to consider the question of accrued jurisdiction. The submissions of the Commonwealth Attorney-General are therefore not noted in the published report. However, the Full Court in Warby & Warby (supra at para 14) observed that the Attorney-General for the Commonwealth had contended in Ferrall & McTaggart that the trial Judge was “correct to proceed on the basis that the Court has accrued jurisdiction”. The Attorneys-General for the various States were not represented in Ferrall & McTaggart, notwithstanding notice had been given to each of them.
69Finally, I observe that Senior Counsel for the wife, in making his submissions in the case presently reserved for decision before Martin J, did not suggest it was necessary for notice to be given to the Attorneys-General.
Consideration of relevant factors
70Senior Counsel for the wife acknowledged that in the event the Court was of the view that it had accrued jurisdiction to deal with the son’s claim, the principles outlined in Warby & Warby would apply in determining whether this was an appropriate case in which to exercise that jurisdiction.
71The Full Court suggested in Warby that the following matters will be relevant in determining whether the Court’s accrued jurisdiction could be invoked:
“1.what the parties have done;
2.the relationships between or among them;
3.the laws which attach rights or liabilities to their conduct and relationships;
4.whether the claims are part of a single justiciable controversy and in determining that question whether the claims are ‘attached’ and not ‘severable’ or ‘disparate’;
5.whether the claims are non-severable from a matrimonial cause and arise out of a common sub-stratum of facts; and
6.whether the Court has the power to grant appropriate remedies in respect of the 'attached’ claims.”
72Having acknowledged that these were the relevant factors, Senior Counsel for the wife did not address them. He may have taken the view this was a decision for the trial Judge, which is probably right. Alternatively, it may have been a strategic decision, since analysis of the son’s proposed claim indicates fairly clearly that his claims and those of the husband and wife are “part of a single justiciable controversy” and not “severable”. Without in any way wishing to bind the trial Judge, it seems to me inevitable that the claim of the son must necessarily be resolved along with the other claims.
Is the cross-vesting legislation relevant?
73Senior Counsel for the wife noted that there is a well-known process available for claims involving third parties to be commenced in the Supreme Court of Western Australia and (where appropriate) transferred for hearing in the Family Court of Western Australia pursuant to the “cross-vesting legislation”. He argued this was the appropriate course for the son to follow.
74Whilst this has been the traditional road by which such claims have made their way to the Family Court of Western Australia, I am not satisfied there is any reason why it should be travelled if this Court has accrued jurisdiction. In all other States (at least prior to the decision in Re Wakim; ex parte McNally (supra), it was open to a party in the Family Court of Australia to commence proceedings in that Court under the “cross-vesting legislation”, without first having to seek relief in the court in which such proceedings would otherwise have been instituted. It was only in Western Australia where an additional hurdle was erected. The consequence was that parties to litigation in this Court were obliged to commence proceedings in two courts, prior to having a final determination in one.
75To adopt the course suggested by Senior Counsel for the wife would inevitably involve the payment of additional (substantial) filing fees; increased costs associated with an application for transfer to this Court; and further delay.
76Such a course would also leave this Court dependent upon a (non-appealable) discretion being exercised by another court to transfer the action, in circumstances where this Court cannot determine the claims of the husband and wife until the claim of the son has been resolved. This is unsatisfactory. Furthermore, there would be a prospect of two different avenues of appeal if it were to be suggested that the Court deal with matters within its State and federal jurisdictions simultaneously.
Does the son have a viable claim?
77Senior Counsel for the wife submitted that even on his own evidence, the son has not established that he has a claim known to the law and therefore argues he should not be given leave to intervene.
78Such a proposition is analogous to an application for summary dismissal. The principles in relation to such matters are well-established. The power to dismiss summarily is a discretionary one, rarely and sparingly exercised. The party seeking summary dismissal must show that the application is doomed to fail. A weak case or one that is not likely to succeed is not sufficient to warrant termination: Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-545 per Kirby J. Bigg v Suzi (1998) FLC 92-799 at 84,973 - 84,974.
79As Dixon J (as he then was) said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:-
“… once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process”.
80I do not consider it necessary to traverse the submissions concerning the chances of success of the son’s claim. I am satisfied there is a “real question” to be determined and “the rights of the parties depend upon it”. The son should therefore have the opportunity to ventilate his claim at trial.
Right to be heard, intervention or joinder?
81The son originally sought the right to be heard or, in the alternative, “if necessary”, to intervene. The husband has subsequently sought an order to join the son as a second respondent, although Rules 6.02(1) and 6.03(2) would suggest an order is unnecessary.
82In my view, it would be clearly inappropriate merely to allow the son the right to be heard. He has a substantive claim he wishes to make and it is therefore necessary he be bound by any decision the Court makes; be amenable to an order for costs; and subject to all of the procedural obligations imposed on parties to proceedings: Ascot Investments Pty Ltd v Harper and Harper (1981) FLC 91-000. Barro and Barro (1983) FLC 91-300 at pp 78,056-78,057.
83The options are therefore to allow the son to intervene or permit the husband to join him as a respondent. There were no detailed submissions about which course would be the most appropriate. In any event, little turns on it and counsel for the husband indicated that the husband supported the application to intervene. In my opinion, the better alternative is for the son to be given leave to intervene, since it is he who wishes the Court to make orders in his favour. Rule 6.05 prescribes a procedure to be followed in such matters, which assists in early identification of the orders the proposed intervenor intends to seek and a statement of some of the relevant facts.
How should the issues be defined?
84Senior Counsel for the wife submitted that the Supreme Court is better equipped to ensure parties to civil disputes adequately identify their claim and defence. However, he properly conceded that this Court can modify its usual processes with a view to ensuring that the son’s claim is laid out with precision.
85I note that in the matter of Rowley & Sloan & Quinto Nominees Pty Ltd, Barlow J was mindful of the fact that the Family Court of Western Australia does not have pleadings. In proceedings of this nature, it is desirable that each party state their case with the precision required in a court of pleading. As Barlow J said, “I do not think it is really sufficient or desirable for this issue to be canvassed in a series of affidavits.”
86I intend to adopt the course Barlow J adopted, namely to leave it to the parties to turn their minds to the procedural orders to be made that will best crystallise the matters in issue. The practitioners involved in Rowley & Sloan saw it as being appropriate for Particulars of Claim to be filed by the party seeking to invoke the Court’s accrued jurisdiction and for the other party to file a Defence.
Orders
87I propose to grant the son leave to intervene and the Appeal will therefore be allowed. I will hear from counsel about the appropriate directions to be made in relation to the future conduct of the proceedings.
I certify that the preceding [87] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate