Wilson v Vater (No 1) - [2008] SASC 7

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
WILSON v VATER (NO 1)
[2008] SASC 7
Reasons of Judge Lunn a Master of the Supreme Court
21 January 2008
PROCEDURE
6R 33 requiring a plaintiff to give 90 days notice and make an offer prior to commencing an action - 6R 33 confined to actions "based on a monetary" claim - held 6R 33 did not apply to an action solely seeking relief under the Domestic Partners Property Act 1996 as it was not based on a monetary claim - plaintiff's application for dispensation from 6R 33 and defendant's application for a stay each dismissed.

WILSON v VATER (NO 1)
[2008] SASC 7
Reasons on plaintiff’s application for dispensation from making an offer under 6R 33 before instituting the action.

JUDGE LUNN: The plaintiff instituted this action on 11 September 2007. In her statement of claim she pleads that she had lived together with the defendant on a genuine domestic basis in a close personal relationship from about 1973 until October 2004. She pleads various property and commercial dealings in the period of co-habitation involving herself and the defendant. The prayer for relief is pleaded as follows:
The remedies sought are:
1An order that the time within which the plaintiff might bring this proceeding be extended to the date upon which this action was commenced pursuant to section 993) of the Domestic Partners Property Act 1996.
2A declaration that the plaintiff and the defendant were parties to a domestic partnership within the meaning of the Act from 1973 until October 2004.
3An Order that the property of the relationship be valued by appropriately qualified and licensed valuers.
4An Order that the assets of the Superannuation Fund be valued by appropriate qualified and licensed valuers.
5A declaration as to the value of:
5.1the property of the relationship; and
5.2the plaintiff’s member account balance in the Superannuation Fund.
6An Order for the division of the property of the relationship pursuant to section 10 of the Act.
7An Order that the costs of the action be paid out of the property of the relationship.
No cause of action is pleaded other than those under the Domestic Partners Property Act 1996 (“the Act”).
No defence has yet been filed. On the affidavits of the defendant’s solicitors it appears that some domestic partnership between the parties is conceded, but the defendant says it terminated in November 2004.
On 15 October 2007 the defendant took out an application seeking to strike out or stay the action. One of the grounds for seeking a stay was that the plaintiff had not complied with 6R 33. On 26 October 2007 the plaintiff took out an application seeking that this action be excluded from the application of R 33. The plaintiff concedes that she had not given any notice of her claim, or made any offer, in the manner required by 6R 33. On 26 October I directed that the plaintiff’s application, and the defendant’s application as far as it relied on R 33, should be dealt with together and that the other parts of the defendant’s application should be held over pending the determination of the 6R 33 issue.
The relevant parts of 6R 33 are as follows:
33 Offers of settlement before action
(1) This rule applies to a primary action based on a monetary claim, other than -
…..
(c)an action excluded from the application of this rule by direction of the Court.
(2)A plaintiff must, at least 90 days before commencing an action to which this rule applies, give the defendant written notice containing or accompanied by –
(a)an offer to settle the plaintiff’s claim on a basis set out in the notice, and
(b) sufficient details of the claim, and sufficient supporting material, to enable the defendant to assess the reasonableness of the plaintiff’s offer of settlement and to make an informed response to that offer; and
(c)if the plaintiff is in possession of expert reports relevant to the claim – copies of the expert reports.
…..
(4)The defendant must, within 60 days after receiving the notice, respond in writing to the notice by –
(a)accepting the plaintiff’s offer of settlement; or
(b)making a counter-offer, or
(c)stating that liability is denied and the grounds on which it is denied.
…..
(7)In awarding costs of the action, the Court may take into account –
(a) whether the parties have complied with their obligations under this rule, and
(b)the terms of any offer or counter-offer, or of any response to an offer or counter-offer, made under this rule and the extent to which it was reasonable or unreasonable in the circumstances. (underlining added).
I raised in the course of argument whether 6R 33 applied to this action. For the reasons which follow I find that it does not apply to this action and therefore there is no basis to make any order excluding its operation or to stay the action pending compliance with it.
The essential issue is whether this action is “a ….. action based on a monetary claim” for the purposes of 6R 33(1). There is no authority on the point.
There is little reported authority on the meaning of “monetary” in such a context. In Vee H Aviation Pty Ltd v BP Australia Ltd (1995) 136 ALR 727 it was accepted without argument that an unliquidated claim for damages was a monetary claim. I adhere to what I have said in my commentary in Civil Procedure South Australia Vol 2 at [MCA s 3.35] that the term “monetary claim” in the definition of “small claim” in s 3 of the Magistrates Court Act 1991 means any claim, whether liquidated or unliquidated, for a judgment in terms of a sum of money based on any cause of action cognisable by the Court.
The term “claim” in 6R 33(1) is to be read in accordance with 6R 30 which provides:
30 Subject matter of action
(1)An action is based on a claim.
(2)A claim is an assertion that grounds exist on which the Court should or may in its discretion determine a justiciable issue, or exercise any other power, in the plaintiff’s favour (and includes a cross claim and a third party claim).
(3)A claim is based on a cause of action (that is, some basis in law and fact on which the plaintiff asks the Court for a remedy).
(4)An action may include claims based on more than one cause of action.
Thus, a “monetary claim” is a cause of action determinable by the Court which gives rise to a remedy expressed in terms of dollars. The comparison of 6R 30(1) and 6R 33(1) discloses that the latter is confined to monetary claims whereas the former encompasses any claim.
It is necessary to consider the significant implications of the phrase “based on” in 6R 33(1) and which also occurs in 6R 30(1), (3) and (4). As was noted in the Canadian case of P(J) v Sinclair (1997) 148 DLR (4^th) 472 at 479 in the context of a statute referring to “an action based on misconduct of sexual nature”:
The phrase “based on” connotes something that serves as a foundation “or starting point and a main or important ingredient”.
The phrase also occurs in s 9(1) of the Commonwealth Racial Discrimination Act 1975 where it refers to distinctions, etc “based on race”. The Full Court considered this section in Aboriginal Legal Rights Movement Inc v South Australia (No 1) (1995) 64 SASR 551 where, at 553, Doyle CJ (with whom Bollen J concurred) said:
….. I am of the opinion that the appointment of the Royal Commissioner is not made unlawful by s 9 of the Racial Discrimination Act 1975 (Cth). In my opinion that section is not attracted unless an action (the relevant act being the appointment of the Royal Commissioner) is done which in fact produces a distinction on the base of race (which has occurred here because the inquiry is into and affects Aboriginal beliefs only) and the existence of that racial distinction is the basis of the relevant act in the sense that the act occurred by reason of or by reference to the racial distinction. ….. The inquiry is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act.
…..
In my opinion, on the available evidence, the basis of the decision to appoint an inquiry is not the race of the persons asserting the existence of ”women’s business” but, in brief, the making of the assertion, the result of that having being done and the subsequent controversy about the matter asserted.
….. In other words, the subject matter of the inquiry has a distinctive association with the Aboriginal race, and perhaps a unique association.
But in my opinion that does not expose race as the true basis of the decision. It does not disclose that the basis of the decision is a characteristic that appertains generally or uniquely to a particular race. In my opinion the basis of a decision remains in particular the asserted fact (be it correct or not) that a declaration was made under Commonwealth legislation in reliance upon assertions which are now disputed.
For those reasons in my opinion the claim under s 9 of the Racial Discrimination Act fails.
This shows that “based on” is narrower than a connection of involving or related to the same subject matter.
Here “based on” in 6R 33(1) requires that the cause of action which constitutes the claim must be able to be characterised as “monetary” and only as monetary. If the cause of action cannot be so characterised, it is not sufficient that the action might involve, or give rise to, judgments expressed in monetary terms.
Here the sole causes of action pleaded by the plaintiff are statutory causes of action conferred by the Act. The relevant powers conferred on the Court are set out in sections 9 and 10 of the Act as follows:
9(1) After a de facto relationship ends, either of the de facto partners may apply to a court for the division of property.
…..
10(1) On an application for the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.
(2)For example, the court may make orders for –
(a)the transfer of property from one de facto partner to the other; or
(b)the sale of property and the division of the net proceeds between the de facto partners in proportions decided by the court; or
(c)the payment by one de facto partner of a lump sum to the other.
(The quotes are from the version of the Act which was in force prior to 1 June 2007 but the amendments which took effect on that date make no material difference on this point).
The primary power of the Court under ss 9 and 10 is to make a division of property between the parties. A judgment in monetary term is only one of several possibilities under s 10(2)(c). The Court may well resolve an action under the Act without giving any judgment in monetary terms. Therefore, it cannot be said that an action which only involves the Act can be an action based on a monetary claim. Here the plaintiff in her statement of claim has not specifically sought any judgment in monetary terms.
Accordingly the plaintiff’s application is to be dismissed. I will convene a directions hearing as to how the balance of the defendant’s application is to be disposed of and to deal with the question of the costs of the plaintiff’s application.
I have today made the following orders:
1Plaintiff’s application, FDN 6, dismissed.
2Defendant’s application, FDN 4, dismissed insofar as it seeks a stay under 6R 33.
3Costs reserved.
4Further Directions hearing to be held on 29 January 2008 at 9.45 am.