WHYTE & BRITTON
[2014] FCCA 2940
•18 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHYTE & BRITTON | [2014] FCCA 2940 |
| Catchwords: FAMILY LAW – Financial – jurisdiction – de facto property matter – question of when the relationship concluded – no accrued jurisdiction if there is no jurisdiction in the Federal Law matter. |
| Legislation: Family Law Act 1975, pt.VIIIAB Federal Circuit Court of Australia Act 1999, ss.14, 18 Australian Family Law, LexisNexis Butterworths |
| Coshott v Prentice [2013] FCA 1196 Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 83 |
| Applicant: | MS WHYTE |
| Respondent: | MR BRITTON |
| File Number: | BRC 11222 of 2013 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 25 November 2014 |
| Date of Last Submission: | 25 November 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 18 December 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr D J Evans of Evans & Company Family Lawyers |
| Solicitors for the Respondent: | Mr P Carmont of Buchanan Legal |
ORDERS
That the preliminary issue of the date of separation be set down for final hearing for not more than two (2) days, at 10.00am on 7 August 2015 and 10.00am on 10 August 2015 in the Federal Circuit Court of Australia at Brisbane.
That the Applicant pay the setting down fee, and if the trial is listed for more than one day any applicable hearing fees, or make application for waiver or exemption of such fee(s) no less than seven (7) days prior to the final hearing.
That each party file and serve on each other party no later than 4.00pm on 10 July 2015:
(a)One affidavit setting out any further evidence in chief; and
(b)One affidavit of each witness intended to be relied upon at trial.
That each party file and serve on each other party no later than 4.00pm on 28 July 2015, a case outline setting out:
(a)A precise minute of the final orders sought;
(b)A relevant chronology;
(c)A list of affidavits and applications and/or responses (where appropriate) intended to be relied upon at trial; and
(d)A statement of evidence which they say supports the principles contained in the relevant sections of the Family Law Act1975.
That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
IT IS NOTED that publication of this judgment under the pseudonym Whyte & Britton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 11222 of 2013
| MS WHYTE |
Applicant
And
| MR BRITTON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties in this matter are in disagreement about the length of the relationship. The respondent, Mr Britton, contends that the relationship ended in 2007 and did not resume. The applicant, Ms Whyte, argues that the relationship concluded late in 2013.
The Law
The significance of the dispute about the ending of the de facto relationship is because Part VIIIAB of the Family Law Act 1975 (Cth) (as amended) (“the Act”) enables the Court to make a property order. However it does not apply to a de facto relationship that ended before 1 March 2009. Hence the de facto relationship matter is a Federal Law matter, provided the relationship ended after 1 March 2009. Otherwise the matter can only be resolved using Queensland legislation or the Common Law.
I accept that the Act does apply if the parties resumed their relationship after 2007 and separated after 1 March 2009.
The applicant submitted, on the authority of Coshott v Prentice [2013] FCA 1196, that the Court in any event (no matter when the de facto relationship ended) could determine the application for property settlement, whether pursuant to the Act or otherwise under State legislation such as the Property Law Act 1974 or the Common Law, as the case may require.
Jurisdiction
Section14 of the Federal Circuit Court of Australia Act 1999 states:
“14 Determination of matter completely and finally
In every matter before the Federal Circuit Court of Australia, the Federal Circuit Court of Australia must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Federal Circuit Court of Australia thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.”
Section 14 grants power to the Court to determine proceedings within the Court’s jurisdiction. If there are associated claims to the proceeding, then s.18 of the Federal Circuit Court of Australia Act 1999 may also be considered.
Section 14 invokes the concept of accrued jurisdiction in emphasising that the Court can determine “all matters in controversy between the parties” and thus avoid a “multiplicity of proceedings concerning any of those matters”.
LexisNexis contains a convenient summary of this area of the law, and in particular, says:
“Accrued jurisdiction cannot be invoked if there is no original jurisdiction: see the decision of the Full Court of the Federal Court in Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 128 FCR 507; 198 ALR 269; [2003]FCAFC 83; BC200302106; the Family Court decision in Klintock v Ferder (2010) 43 Fam LR 135; [2010] FamCA 162; BC201050205 and Dubois v Inwood [2011] FMCAfam 1337; BC201110490 in which the court found that having made a finding of there being no de facto relationship pursuant to the 1975 Act, the court had no accrued jurisdiction to determine the existence (or otherwise) of a constructive trust.”
Accrued jurisdiction cannot be invoked if there is no original jurisdiction, as decided by the Full Court of the Federal Court of Australia in Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 83. The headnote summarises the case as follows:
“On 3 February 2003, the Full Court held that it had no jurisdiction to determine the applicant’s claim relating to the validity of concessions granted by the Portuguese government. The joint judgment of Black CJ and Hill J concluded that non-justiciability had the consequence that the Court lacked jurisdiction because there was no “matter” (in the sense used in Chapter III of the Constitution of the Commonwealth) before the Court. Beaumont J held that even if there could be said to be a “matter” before the Court (in the sense of a “justiciable controversy”), it was clear that any such controversy did not itself “arise” under any federal law.
The Court then separately considered whether, all other claims having been dismissed, it had jurisdiction to determine the applicant’s claim relating to confidential information given that such claim was not itself a federal matter.
Section 32(1) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) provided that jurisdiction was conferred on the Court in respect of matters not otherwise within its jurisdiction that were associated with matters in which the jurisdiction of the Court was invoked.
Held, by the Court: (1) If the Court’s federal jurisdiction is not properly invoked then there can be no accrued jurisdiction. In this case, the controversy said to constitute the federal matter is one that is non-justiciable. There is therefore no federal matter at all and no accrued jurisdiction. [19], [22], [34]
Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543, applied.
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212, distinguished.
(2) Section 32 of the Federal Court Act is predicated upon the existence of some matter which is within the jurisdiction of the Court and with which the associated matter is associated. Here there is no such matter and s 32 may be disregarded. [24], [38]”
In Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (supra) the Court said:
“[3] It cannot be in dispute that where this Court is invested with original jurisdiction to determine what may be referred to as a “federal matter” it has jurisdiction to determine the whole of the matter in controversy between the parties, including such elements of the matter as may be in and by themselves not federal in nature: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570. In such a case the non-federal matter has usually been said to be in the “accrued jurisdiction” of the Court, although the expression may need to be used with some care: cf Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 585-586.
[4] It is equally clear, however, that this Court may not proceed to deal with what may for present purposes be called the non-federal aspect of the dispute unless the jurisdiction of the Court to deal with a federal matter has been invoked: Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553 and see Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261.
[5] As counsel for the 3rd to 5th Respondents point out in their written submissions, and by reference to what was said by Gleeson CJ, Gaudron and Gummow JJ in Edensor at 585-586, generally the cases which have considered the question of accrued jurisdiction have been cases which arose under a law made by the Parliament where the Court was seised of jurisdiction in a “matter” within the meaning of s 76(ii) of the Constitution. That law has usually been the Trade Practices Act 1974 (Cth). However, as already noted, it is important that the Court be seised of the federal matter before the question can arise whether the Court has accrued jurisdiction to determine the non-federal issue which is part of the single controversy which constitutes the “matter”.
[6] It is now well established that the mere fact that a federal claim which is brought within the jurisdiction of the Court is not tenable will not prevent the Court from proceeding with a non-federal element which is within the accrued jurisdiction of the Court: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212; Post Offıce Agents Association Ltd v Australian Postal Commission (1988) 16 ALD 428.
[7] Burgundy involved a claim brought under the Trade Practices Act against the Northern Territory and a corporation which was the Crown in the right of the Territory. It also involved non-federal claims. The ratio of the decision is that it followed from Fencott v Muller that a “matter” in the context of s 76(ii) of the Constitution was a justiciable controversy which was either constituted by or included a claim arising under a federal law but might also include another cause of action arising under a non-federal law. Since the Court had jurisdiction to determine each of the claims which together constituted a federal matter, the mere fact that the federal claim was unsuccessful did not mean that the Court could not determine the non-federal claim. Since the Court did have jurisdiction to determine the federal matter arising before it, that jurisdiction did not cease once the federal claim was determined adversely to the applicants.
…
[18] What is, we think clear, however, is that where the federal part of the controversy is such that the Court lacks jurisdiction to hear it, then there can be no accrued jurisdiction. Accrued jurisdiction can only arise where the single controversy which is the “matter” is one which is within the jurisdiction conferred upon the Court. If no federal jurisdiction is properly invoked then there can be no accrued jurisdiction: Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at 598 per French J.”
That Full Court authority makes it abundantly clear that, unless there is jurisdiction through the relationship continuing beyond 1 March 2009, I have no jurisdiction to deal with the matter. For a State law to be applied there has to be a subsisting Federal jurisdiction to attach the accrued aspect of the case to.
I am not persuaded by the submission that I can deal with the matter under the State laws if I find that the relationship ended in 2007. I am therefore going to set the matter down for a hearing and determination in relation to jurisdiction, to determine the timing of the end of the relationship. I will make the following directions.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 18 December 2014
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