Vucic v Belosevic

VUCIC & ANOR v BELOSEVIC & ORS
[2003] SASC 296
Civil

DEBELLE J This is an application by the second defendant to transfer this action to the Family Court of Australia. It is made pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987. In the alternative, the second defendant applies for an order that the action be stayed as an abuse of process of the court. The second defendant also applies for an order that she be excused from filing a defence in this action or, alternatively, that she be granted an extension of time in which to file her defence.
This action was commenced on 30 January 2003. The plaintiffs are husband and wife. The second plaintiff, whom I will sometimes call Lepijana Vucic, is the daughter of the first defendant and the first plaintiff is the first defendant’s son-in-law.
There are five defendants. The first defendant is the father of Lepijana Vucic and the second defendant is his present wife. They were married in 1987 and separated in 1996. This is the second marriage for the first defendant. Lepijana Vucic is the daughter of his first marriage. The remaining three defendants are companies of which the first and second defendants are both directors and shareholders. No appearance has yet been entered in this action by or on behalf of the three defendant companies.
In this action the plaintiffs seek to recover a loan of $270,000 which they allege they made to the first defendant for the purpose of business projects to be conducted in partnership with him. They also seek to recover a Mercedes Benz motor car which, they say, they made available to the partnership business. In addition, they seek orders for the dissolution of the partnership, accounts and damages. They claim two-thirds of the assets of the partnership business.
The plaintiffs intend to amend the statement of claim in this action to allege that the second defendant has knowingly converted the Mercedes Benz to her own use and that she was knowingly concerned in the affairs of the partnership business and knowingly benefited from the failure of the first defendant to account to the plaintiffs and repay the monies lent by them to the business.
The first defendant has filed a defence in which he admits the loan of $270,000, that he and the plaintiffs were in partnership, and that the plaintiffs made the Mercedes Benz available to the partnership business. He does not oppose orders for dissolution of the partnership and accounts but denies that the plaintiffs are entitled to the share they seek.
The second defendant has not filed a defence. Instead, on 21 March 2003 she made this application to transfer the action to the Family Court. In the alternative, she has applied for an order that this action be stayed as an abuse of process. She has applied for an order excusing her from filing a defence or extending the time in which to file her defence.
On 11 January 2002, more than 12 months before this action was commenced, the second defendant had commenced proceedings in the Family Court seeking orders against the first defendant including orders for a division of the property of the marriage between them. Orders are also sought in relation to the children of the marriage. The first defendant has defended those proceedings. The proceedings are still on foot. On 5 September 2002 the plaintiffs applied to intervene in the Family Court proceedings in order to maintain the claims which are the subject of their action in this Court. On 9 October 2002 the plaintiffs sought orders restraining the disposition by the first and second defendants of their interests in seven companies which include the three companies which are the third, fourth and fifth defendants in the action in this Court. They also sought orders restraining the first and second defendants from disposing of their individual assets pending the outcome of the application to intervene. On 18 October 2002 a judge of the Family Court made an order granting the plaintiffs leave to intervene. By consent, the applications for the injunctions were dismissed.
On 18 March 2003 the second defendant’s solicitor asked the plaintiffs to consent to an order that this action be transferred to the Family Court. The plaintiffs refused the request. The second defendant, therefore, brings this application. Since the application was lodged, the plaintiffs have stated that they intend to apply to withdraw from the action in the Family Court. An application to that effect was lodged on 7 April. The application has not yet been heard.
The Cross-Vesting Act
I deal first with the application made pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987. Section 5(1) was amended following the decision in Re Wakim; ex parte McNally (1999) 198 CLR 511. It now provides:
“       5. (1) Where—
(a)    a proceeding (in this subsection referred to as the ‘relevant proceeding’) is pending in the Supreme Court; and
(b)  **********
(ii)    it appears to the Supreme Court that having regard to—
(A)whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court; and
(B)the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and
(C)the interests of justice,
it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be,
**********
the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.”
It will have been noticed that paragraphs (A), (B) and (C) of s 5(1)(b)(ii) are linked by the conjunction “and”. Thus, each of those three criteria must be satisfied if an order is to be made to transfer the proceedings from the Supreme Court to the Family Court. In other words, the interests of justice do not stand as the separate criterion which, if satisfied, will justify an order transferring the proceedings.
That conclusion is reinforced if regard is had to the form in which s 5(1) was expressed before the decision in Re Wakim. It then provided:
“ 5. (1) Where—
(a)a proceeding (in this subsection referred to as the ‘relevant proceeding’) is pending in the Supreme Court;
and
(b)(i) it appears to the Supreme Court that the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Family Court and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court;
(ii)it appears to the Supreme Court that having regard to—
(A)whether, in the opinion of the Supreme Court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court;
(B)the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction;
and
(C)the interests of justice,
it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be;
or
(iii)it appears to the Supreme Court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Family Court;
the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.”
Paragraph (b) of s 5(1) provided three alternative grounds on which to transfer proceedings from the Supreme Court to the Family Court. They were:
(1)where there were related proceedings in the Family Court and it was more appropriate that the relevant proceeding be determined by the Family Court;
(2)that all three of the prerequisites in paragraph (ii) were satisfied; or
(3)that it was in the interests of justice that the proceedings be determined by the Family Court.
The fact that the requirements of paragraph (ii) were cumulative was emphasised by the use of the conjunctive “and” in paragraph (ii) in contrast to the disjunctive “or” which created the three alternative grounds in s 5(1)(b)(i), (ii) and (iii). The fact that s 5(1)(b)(iii) provided a separate ground of the interests of justice also indicates that paragraph (c) was but one of three requirements in paragraph (ii) which all had to be established.
For these reasons, the interests of justice standing alone is not a separate ground on which to transfer proceedings from the Supreme Court to the Family Court. It is necessary to satisfy all three paragraphs (A), (B) and (C) of s 5(b)(ii).
The applicant does not, in any respect, satisfy either paragraphs (A) or (B). One of the requirements of paragraph (A) is that “the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court”. The subject matter of the proceedings in the Supreme Court involves a claim for repayment of a loan and resolution of a partnership dispute which is entirely within the jurisdiction of this Court and is capable of being instituted in this Court. The action does not in any respect raise issues arising out of the Family Law Act 1975 (Cth). Paragraph (A) is not, therefore, satisfied.
The issues in the Supreme Court action will be determined by the application of the principles of common law and equity. In no respect do the matters for determination arise under or involve “questions as to the application, interpretation or validity of a law of the Commonwealth” as is required by paragraph (B). Furthermore, for the reasons already mentioned, they are entirely within the jurisdiction of the Supreme Court. Thus, the requirements of paragraph (B) are not satisfied.
For these reasons, the requirements of paragraphs (A) and (B) of s 5(1)(b)(ii) are not satisfied and there is no ground on which to order the transfer of this action to the Family Court.
An Abuse of Process?
I turn to the second defendant’s application that this action be stayed as an abuse of process.
Courts will stay proceedings as an abuse of process where the same remedies are sought in two separate actions. In McHenry v Lewis (1882) 22 Ch. D. 397 at 400, Sir George Jessell MR expressed the principle in these terms:
“In this country, where the two actions are by the same man in Courts governed by the same procedure, and where judgments are followed by the same remedies, it is prima facie vexatious to bring two actions where one will do.”
At 402, he described the ground of vexation:
“The vexation, if any, consists in bringing several proceedings to try the same question or series of questions.”
The principle has been constantly applied since: see, for example, Logan v Bank of Scotland (No 2) [1906] 1 KB 141 at 150; Slough Estates Ltd v Slough Borough Council [1968] Ch. 299 at 314 – 315; Moore v Inglis (1976) 50 ALJR 589 at 593. Three examples of the application of the principle of this Court are Rutt v Metropolitan Underwriters (Australasia) Ltd [1929] SASR 426 at 430 – 431, Australian Consolidated Industries Ltd v Scholle Industries Pty Ltd (1982) 62 FLR 289 and University of South Australia v GNB Battery Technologies Ltd (1997) 192 LSJS 1.
It is equally well settled that the power to stay proceedings should be exercised with caution: McHenry v Lewis (supra) per Cotton LJ at 406; Moore v Inglis (supra) at 593.
The principle requires that the same relief is sought in two actions. In this case, the subject matter of the two actions is plainly different. The action in the Supreme Court is an action to recover a debt and for the determination of partnership disputes. The issues in the Supreme Court action require an examination of the alleged partnership dealings, of the events leading to the alleged loan of $270,000, and of the claim that the plaintiffs made a Mercedes Benz available to the partnership and the terms on which it was made available. Although the first defendant has admitted many of the facts, he disputes the share to which the plaintiffs claim to be entitled. Furthermore, as the second defendant asserts that the plaintiffs’ claim is made to defeat her proper entitlement to property under the Family Law Act, it appears that the second defendant will seek to test the factual allegations on which the plaintiffs’ claim is based. If the plaintiffs’ claims are established, it will be necessary for a detailed accounting to be undertaken. There are, therefore, important issues of fact to be resolved in the Supreme Court action. The determination of the issues in the action will determine the pool of assets which are available to satisfy the claims of the second defendant in the Family Court. Those questions will have to be resolved before the claims of the second defendant under the Family Law Act can be considered.
The issues concerning the partnership business are completely separate from those which arise under the Family Law Act. They are distinct from and unrelated to the claims which the second defendant makes under the Family Law Act. This Court plainly has jurisdiction in respect of the issues in this action.
The central issue in the proceedings in the Family Court is the second defendant’s claim for settlement of property upon her and for orders as to the children of the marriage. Although the plaintiffs in the Supreme Court action had applied to be interveners in the Family Court proceedings, they no longer intend to pursue that remedy. In these circumstances, there is no ground on which to stay the action in this Court as an abuse of process. The application of the second defendant must be dismissed.
I do not think that the fact that the plaintiffs at first applied to be joined as interveners in the proceedings in the Family Court and then later instituted this action in this Court is a factor which causes me to stay the action. The reasons why the plaintiffs decided to seek relief from this Court have been explained. The plaintiffs assert that the proceedings in the Family Court are not validly constituted on the ground that the first and second defendants are not lawfully married. The plaintiffs have proved documents which establish that the first defendant was married in Serbia in 1961 to the mother of Lepijana Vucic. They have proved a statement from Lepijana Vucic’s mother asserting that her marriage to the first defendant has not been dissolved. They were concerned whether the Family Court has jurisdiction to determine property issues relating to what is alleged to be a void marriage. Their concern might not be justified because it seems that the Family Court has jurisdiction to make orders relating to the property of a void marriage: see the definition of “matrimonial cause” in s 4 of the Family Law Act and s 31, s 39, s 71 and s 79 of that Act, as well as Lengyel v Rasad (1989) 99 FLR 130. However, the question I have to consider is whether the plaintiffs have acted in an opportunistic or inappropriate manner. I do not think they have. They seek to litigate an issue which is separate and apart from the issues as between the first and second defendants. Although the outcome of that question clearly has a capacity to affect the amount of the assets which will be the subject of orders in the Family Court, there were legitimate reasons for instituting the action in this Court.
The interests of justice require that, if it is reasonably possible, the issues between the parties be heard and determined in one court. Plainly, that will reduce costs. However, if it is appropriate, there is no reason why this Court cannot determine the partnership questions and, having done so, stay the whole or part of its order pending the resolution of the proceedings in the Family Court.
The fact that the second defendant alleges that the first defendant is acting in collusion with the plaintiffs to defeat her proper entitlements under the Family Law Act is not a relevant factor when determining which is the more appropriate court in which to determine the partnership claims. The second defendant would be able to press that issue in either court. The possibility of collusion would not be reduced if proceedings are heard in one court as opposed to another.
It is also an abuse of process if an action is being employed for some purpose other than the attainment of the claim, the subject of the action. If the action is merely a stalking horse to coerce the second defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate, it is an abuse of process: Varawa v Howard Smith Company Ltd (1911) 13 CLR 35 per Isaacs J at 91. There is no evidence of any such ulterior purpose of the plaintiffs. The subject matter of the action relates to disputes which exist between the parties and the plaintiffs prefer to litigate those issues in this Court rather than in the Family Court.
For these reasons, the application to stay this action in this Court as an abuse of process must be dismissed.
There remains the defendant’s application for time within which to file her defence in this action. I will hear the parties as to the appropriate time within which to do so.

[2003] SASC 296

28 August 2003