First Plaintiff v Defendants

3 The first and second plaintiffs (Mr Solomon Lew and Mrs Rose Lew) are the parents of the third, fourth and fifth defendants (Peter Lew, Jacqueline Lew and Steven Lew and referred to collectively as "the Lew children"). The plaintiffs contend that in 1999 three agreements were entered into to give effect to a proposal designed to deal with an expected adverse change to the law for the taxation treatment of certain trusts. A consequence of the agreements is alleged to be that certain distributions made by SLC from the trust to each of the Lew children were to be held by them on behalf of Mr Solomon Lew and Mrs Rose Lew. The entitlement to amounts in two of the three loan accounts arise in Family Court proceedings. The beneficial entitlement to the loan account in the name of Ms Jacqueline Lew is an issue in the Family Court proceeding between her and her former husband Mr Adam Priester. The beneficial entitlement to the loan account in the name of Mr Steven Lew is an issue in the Family Court proceeding between him and his former wife Ms Sarah Nowoweiski. The plaintiffs claim that both amounts are owned by Mr Solomon Lew and Mrs Rose Lew and that neither amount is part of the property of either of their children. It is that claim that the plaintiffs seek to have declared as against all the defendants in this proceeding.

4 Ms Sarah Nowoweiski and Mr Adam Priester challenge the competency of these proceedings on several grounds. It was first contended on behalf of Ms Sarah Nowoweiski that the claims made against her and her former husband, Mr Steven Lew, should be set aside pursuant to Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 2.01(2)(a) by reason of the plaintiffs' non-compliance with r 9.02. Those submissions were generally supported on behalf of Mr Adam Priester in relation to claims against him and his former wife Ms Jacqueline Lew.

5 Rule 2.01 provides that a failure to comply with the rules is an irregularity permitting the Court to set aside a proceeding either wholly or in part. The irregularity contended on behalf of Ms Sarah Nowoweiski is the failure of the plaintiffs to comply with r 9.02 by having inappropriately joined the defendants in the one proceeding without the Court's leave. The plaintiffs, together with the third, fourth and fifth defendants, contend that there was no irregularity but in the alternative seek leave pursuant to the rule for the proceedings to proceed as joined.

6 Order 9 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) permits the joinder of claims and parties. In this case it was contended that the plaintiffs' claims against each of the defendants were separate and not otherwise permitted to be joined pursuant to r 9.02 without leave. Rule 9.02 provides:[1]

9.02 Two or more persons may be joined as plaintiffs or defendants in any proceeding-

(a) where-

(i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and

(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

(b) where the Court, before or after the joinder, gives leave to do so.

The requirements in r 9.02(a) are cumulative and, relevantly, require that "some common question of fact or law" would arise in all proceedings if separate proceedings were brought, and that all rights to relief were "in respect of or arise out of the same transaction or series of transactions". In this case it was contended by the first and second defendants that no common question of fact or law arose and that such relief as was sought did not arise in respect of or out of the same transaction or the same series of transactions.

7 Whether claims were "in respect of or arising out of the same transaction or series of transactions" was considered in Payne v Young[2] and Marino v Esanda Ltd.[3] In Payne seven plaintiffs had joined in an action against eight defendants seeking declarations that regulations made under an enactment were invalid. Each plaintiff also claimed the recovery of inspection fees from a particular defendant to whom fees had been paid under protest. Each fee had been paid by the plaintiffs to different defendants and the amounts of the fees and the scale upon which they were payable differed as between the plaintiffs. In that case the Court held that each series of transactions was peculiar to each individual plaintiff and that the right to the relief claimed was not in respect of, nor arose out of, the same transaction or series of transactions within the meaning of the comparable rule of the High Court. At first instance Aickin J said:

In the statement of claim the various plaintiffs make a common claim against all the defendants concerning the invalidity of the regulations. Each plaintiff, however, goes on to make an individual claim against one defendant only for the repayment of fees paid to that defendant. Thus each relevant defendant has only a single claim made against it for repayment of money paid under compulsion or paid under a mistake of law.

I do not think it can be said that the claims for sums of money are for relief in respect of or arising out of the same transaction or series of transactions. It is true that it has been held that the rules should be construed in a liberal sense so as to permit joinder of parties wherever reasonably practicable (see Re Beck and Payne v. British Time Recorder Co.). The most that can be said here is that the claims arise out of similar transactions or several series of similar transactions. I do not think the rule can be extended to cover such a case. Therefore I am satisfied that the case does not fall within O. 16, r. 1 and that under O. 16, r. 4 the names of the parties improperly joined should be struck out.

There is no logical basis for distinguishing between the various plaintiffs for the purpose of determining which ones are "improperly" joined, other than by reference to the fact that the only application for striking out is made by the first, second and eighth defendants. So far as they are concerned the only claim made against them which involves a claim for recovery of money paid is by the sixth plaintiff. If the action had been concerned only with the declaration of invalidity there would have been no objection to the joinder of all the plaintiffs.

The claims for recovery of money involved quite distinct issues which would involve the investigation of different sets of facts in respect of each plaintiff.[4]

His Honour's judgment and reasons were upheld on appeal.[5]

8 The plaintiff in Marino v Esanda Ltd[6] had sought relief from the terms of a contract alleged to be void as between himself and the defendant. He had also sought to sue on behalf of others who had separately entered into similar contracts with the defendants. In that case Tadgell J held that the relief sought in the action was not a claim in respect of, and did not arise out of, the same series of transactions saying:

In my opinion the submission is not sustainable. The two agreements into which the plaintiff entered with the defendant were personal to him and were of no concern at all to any other member of the "plaintiff class". The same was true respectively of each pair or set of agreements entered into by each other member of the "plaintiff class". In a sense the succession of contracts made by the various members of the "plaintiff class" could be called a series of transactions, but this was so only because the defendant was a party to them all and the Credit Act 1984 (Vic) allegedly affected them all. Those factors do not, in my view, justify the conclusion that the relief sought in the action is claimed in respect of or arising out of the same series of transactions in terms of O.16, r1. I think that the rule no more applies here than it would to authorize the joinder as plaintiffs of a hundred unrelated members of the public who all went to a supermarket on a Saturday morning and bought, each of them, a pound of butter that happened to be contaminated. Each purchaser, if he consumed part of his purchase and became ill as a result, might have a right of action against the vendor by virtue of breach of an implied condition or warranty derived from the Goods Act 1958 (Vic), and perhaps also some other statutory rights to compensation. Those who sued would sue a common vendor and each would presumably have a cause of action of a kind identical to that of each of the others. Moreover, the 100 purchase transactions could well be described as a series, but the relief obtainable by none of the purchasers could be said to arise out of the same transaction or series of transactions: in the case of each the relief would be in respect of or arise out of his individual transaction and nothing else. Order 16, r1 would not apply to allow them or any of them to join as plaintiffs in the one action.[7]

His Honour cited from Payne in reaching his conclusion and signalled the importance of the fact "that one is to look not only for a series of transactions but to see also whether the relief claimed is in respect of or arises out of a series of transactions".[8]

9 By parity of reasoning it cannot, in my view, be said that the plaintiffs' claims against the defendants were in respect of or arose out of the same transaction or series of transactions. What the plaintiffs plead, rather, is three separate agreements entered into through Mr Solomon Lew with three separate defendants namely, each of the three Lew children. There may have been a similar context in which the agreements were entered into, and the three agreements as alleged were similar, if not identical, to each other in their purpose, motive, terms and effect, but it is three separate and individual agreements that are pleaded. Such claim as the plaintiffs may have against Mr Peter Lew, Ms Jacqueline Lew, and Mr Steven Lew are, therefore, separate and peculiar to them individually and do not arise in respect of or out of the same transaction or series of transactions. They could be called a "series of transactions" only in the sense referred to by Tadgell J in Marino,[9] namely, that they have obvious similarity and are alleged to have arisen from the same concerns and in respect of the same trust.

10 The proceeding as instituted also fails to satisfy the condition in r 9.02(a)(i) of there needing to be "some common question of law or fact" to arise in all of the proceedings if they had been brought separately against the defendants. No "common" question of fact or law arises although the questions of law in the claims pleaded will be similar, and much of the evidence surrounding the individual agreements will be the same. The similarity of legal principle between the respective claims does not make them "common" in the sense of the legal question to be asked in one case applying automatically to the other. The same is true about the factual findings required to be made in each of the separate claims. The evidence and background in respect of each claim is in some respects the same and in other respects similar, but the factual questions to be determined in each case are individual and particular to each claim. The evidence in one claim may serve equally in another and, indeed, it is possible that the evidence in one claim may be admissible as propensity evidence in another,[10] but that does not mean that the factual questions to be determined in each claim are "common" in the sense that the finding in one claim will be the finding in another claim. The considerations of similarity of evidence and similarity of legal issues may be relevant to the grant of leave for the proceedings to be joined but are not sufficient in my view to satisfy the conditions in r 9.02 without leave being granted.

11 Whether or not leave should be granted under r 9.02(b) is a difficult question to consider wholly independently from any question about whether the proceeding, or a part of the proceeding, should be cross-vested to the Family Court. That is because broad considerations about the interests of justice arise in respect of both questions and the convenience of dealing with proceedings in either forum may be a matter relevant to each. However, I would grant leave for the joinder of the proceedings (nunc pro tunc) if there were no issue about the matters in dispute also arising for determination in the Family Court. The public policy in permitting joinder of proceedings is to avoid multiplicity of proceedings and to promote finality of litigation.[11] There would be no purpose served in requiring the common evidence in each of the three proceedings to be given three times. It would not be desirable for the common evidence in chief to be run differently in three different claims with obvious overlap and similarity. It would not be desirable for the common witnesses and evidence to be tested by cross examination and argument three times with the potential for inconsistent findings, and for the parties in subsequent proceedings either benefiting from what had occurred in the previous proceeding or to be prejudiced by the possible correction of evidence in light of the earlier proceeding. It is desirable that each proceeding should have the benefit of all evidence, arguments and submissions to the extent permissible and proper, consistently with the rules of evidence and fairness as between the parties.

12 In this case there is obvious benefit in the three proceedings being joined: the overlap of evidence is extensive, the evidence which is limited to each of the separate claims is relatively small, the arguments in each case will largely be the same and all the parties with an interest in the outcome will be bound by the one outcome in the one proceeding decided at the one time with similar rights of appeal in the one process. In Humphries v Newport Quays Stage 2A Pty Ltd[12] Besanko J identified nine matters to be considered on an application for consolidation or joint hearing of a proceeding:

1. Are the proceedings broadly of a similar nature?

1. Are there issues of fact and law common to each proceeding?

1. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?

1. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?

1. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?

1. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?

1. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?

1. Is one proceeding further advanced in terms of preparation for trial than the others?

1. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?[13]

A consideration of these matters, including those in Main-Road Property Group Pty Ltd v Pelligra & Sons,[14] point overwhelmingly to the favourable exercise of the discretion to permit joinder of the three claims as brought. On any view the evidence to be led in each of the three claims is likely to be the same in key respects. The facts pleaded include details of the one common trust and of its one common management and control over the relevant period. It will be essential to the evidence concerning each of the three alleged agreements for Mr Solomon Lew to explain the background said to have given rise to the three agreements alleged to have occurred in 1999 with each of his three children. Critical to that evidence will be the credibility of Mr Solomon Lew and, to that extent, it is likely that he would be cross-examined in what would otherwise be at least two of the potentially three proceedings. It is likely that such cross-examination in each of the proceedings, if conducted separately, would concern not only the existence of the particular agreement relevant to the one proceeding but also his testimony concerning the background and objectives to be secured by what he contends to have been the proposal put to, and adopted by, each of his three children. It is generally not desirable that there should be such cross-examination in more than one proceeding. It is generally undesirable to create the possibility that evidence might not fully be tested in the one proceeding or to leave open the possibility of inconsistent findings in different proceedings. Parties and witnesses should not be given opportunities for different testing of evidence on different occasions or the benefit of seeing how one set of practitioners perform in one proceeding before testing credibility in another proceeding at another time. The evidence of Mr Solomon Lew's taxation concerns, the advice he received, the development of the trust proposal and the nature of the steps taken to implement it are matters said to be probative of whether he in fact had the conversations that he alleges to have had with each of his three children.[15]

13 The plaintiffs also contended that they would wish to call as witnesses each of the children in each of any separate proceedings to give evidence of the substance of the conversations that each of them had with their father which the plaintiffs maintain will be admissible as relevant propensity evidence having significant probative value in each of the claims.[16] It would not be appropriate for a decision to be made about the correctness of the submissions about the admissibility of the evidence other than to accept, as responsibly put by senior counsel, that if the case were conducted in separate proceedings, it would necessarily involve such overlap of testimony as to give rise to undesirable consequences such as the possibility of inconsistent findings, potentially unfair or oppressive cross-examination and delay. Another plain advantage of joinder is that all parties would be present in the one proceeding and the Court's answer to the questions would bind all relevant parties to the extent applicable.[17] The defendants have not filed defences but the Lew children have not sought to challenge the institution of these proceedings by the plaintiffs. It is not possible to form a concluded view about the controversy at trial, but it is possible that the Lew children will not controvert the plaintiffs' claims and that the true controverters will be Mr Adam Priester and Ms Sarah Nowoweiski. In that event it may be that each will benefit in joined proceedings from the testing each is able to do of the overlapping evidence. Mr Adam Priester and Ms Sarah Nowoweiski's former spouses do not have the same interest as they do in contesting the plaintiffs' claims and the Court will benefit from having the evidence tested by the true controverters.

14 It has been said that the basic principle in determining whether to exercise the discretion to grant leave for proceedings to be joined is that the court "should take whatever course seems to be the most conducive to a just resolution of the disputes between the parties" but in doing so be "affirmatively satisfied that joinder is unlikely to result in unfairness to any party" having regard "to practical matters".[18] It was submitted for Ms Sarah Nowoweiski that joinder would be unfair and inexpedient to her because (a) discrete and irrelevant matters in relation to the alleged arrangements with her former husband's sister and brother would overbear such material as would be common to the claims, and (b) that her claims ought to be transferred to the Family Court which is seized of the issues. Similarly, the submissions for Mr Adam Priester under the heading "Reasons for Transfer Here" raised some matters which are also relevant to whether joinder of the proceedings should be allowed. Mostly the submissions on his behalf under that heading related to "which jurisdiction [was]" more appropriate but in that context there were some matters which might fairly be said to raise "practical matters" of expediency relevant to doing justice between the parties. One was the submission that a consequence of joinder (or more particularly of not transferring part of a proceeding to the Family Court whether before or after joinder) was that Mr Adam Priester might lose the benefit of an order that his former wife pay his costs of the Family Court proceeding. I will return to these considerations when dealing separately with whether I should order the transfer of any part of the joint proceeding to the Family Court. In the context of deciding whether the proceedings ought otherwise to be joined, however, it is my view that it would not be unfair or inexpedient for the proceedings to be joined except in relation to the possibility that Mr Adam Priester and Ms Sarah Nowoweiski might be exposed to substantial legal costs that they might otherwise not have had to pay themselves in the Family Court. The grant of leave sought by the plaintiffs is discretionary and the parties accepted that the Court has power to impose conditions upon the grant of leave. In that regard counsel for the plaintiffs gave an undertaking to the Court that, as a condition for the grant of leave to join the proceedings, the statement of claim would be amended to delete the claim for costs against Mr Adam Priester and Ms Sarah Nowoweiski and that the third plaintiff would pay the costs of all parties to the litigation on a party/party basis subject to any ruling of the trial judge.

15 With the condition upon the payment of costs I am satisfied that permitting the joinder of the proceedings nunc pro tunc is the most conducive course to do justice between the parties without unfairness to any party having regard to practical matters. Joinder of the three proceedings in this Court will permit the question of the beneficial entitlement alleged to arise under the three agreements to be authoritatively determined as a matter of general law. The one proceeding to determine those issues may be contrasted with the alternative urged on behalf of Mr Adam Priester and Ms Sarah Nowoweiski, namely, that in each of the separate proceedings they would each separately have determined their family law claim to any property including any claim as against Mr Solomon Lew and Mrs Rose Lew. I was informed that those claims would be heard by different judges at very different times. One proceeding is expected to be heard in May 2012 but the other, I was told, was unlikely to be heard for some eighteen months. The evidence before me is that the determination of the plaintiffs' claims, namely that the distributions by the trust to the Lew children are held beneficially for Mr Solomon Lew and Mrs Rose Lew, can be heard expeditiously and conveniently in the one proceeding at the one time. The parties to the Family Court proceedings would then have a judicial determination of a discrete issue to be taken into account by the respective judges in each of the Family Court proceedings. At one point counsel for Mr Adam Priester appeared to submit that any judicial determination by this Court would be irrelevant to the Family Court proceeding and not binding on the parties to those proceedings. I do not accept that submission[19] but, even if it were correct, a determination by this Court of the common law rights of the parties would be a factor for the Family Court to take into account in the broad jurisdiction of that Court in dealing with the rights of the parties to a marriage. It is hard to imagine, for example, that the Family Court would not take into account a declaration contrary to the plaintiffs' claims if they were not established in this Court. In that hypothetical event it would be hard to see how the plaintiffs or the relevant Lew children could maintain a claim in the Family Court inconsistently with a declaration they had sought and failed to obtain in this Court.

16 It is next necessary to consider whether the proceeding, or some part of the proceeding, should be transferred under s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic). In that regard there was considerable argument about the power to transfer the proceeding or part of the proceeding, and about whether the first and second defendants had sufficiently identified something capable of transfer. It may not be necessary to spend much time dealing with those matters in view of the conclusion I have reached against the transfer of the proceeding or of any part of it. However, before turning to my reasons for that conclusion, it may be desirable to say generally something about the other matters.

17 There was some debate about whether "proceeding" when used in this context means the entire proceeding or a cause of action within a proceeding. It was submitted by the plaintiffs that in Whiley Investments (Qld) Pty Ltd v Pet's Paradise Franchising (Qld) Pty Ltd[20] Davies J had adopted the view that "proceeding" when used in the Courts (Case Transfer) Act 1991 (Vic) carried the meaning of the "action or cause initiated by the appropriate process"[21] and excluded the possibility of transferring part of a proceeding. Her Honour's conclusions do not extend as far as the submission contends. It appears that her Honour's reasons were expressed without having been referred to the decisions in Jackson v John Fairfax & Sons Pty Ltd[22] and Soverina Pty Ltd v Natwest Australia Bank Ltd[23] which had held that for the purposes of the relevant cross-vesting legislation considered in those cases, the legislature had contemplated that there may be a transfer of a singular proceeding (or several singular proceedings), in the sense of a cause of action, out of the totality of a proceeding.[24] In Jackson the orders made were to transfer claims by reference to particular paragraphs in a statement of claim.[25]

18 Contrary to the submissions for the plaintiffs, however, I do not understand her Honour in Whiley to have adopted a different view from that in Jackson and Soverina. Indeed, her Honour expressly referred, with apparent approval, to the observations by Smart J in Blake v Norris[26] which had been referred to in Soverina[27] and in which it was concluded that "proceeding" should be construed to mean "cause of action" and that the decision in Blake required no different result from that in Jackson. If it were necessary to do so, therefore I would conclude that a discrete cause of action was capable of being transferred from a proceeding if otherwise properly joined consistently with Soverina and, in my view, consistently with Whiley.

19 A second matter upon which there was considerable debate concerned the relative jurisdictions of this Court and of the Family Court to determine the entirety of the disputes to the extent of overlap. There is no doubt that the jurisdiction of the Family Court is, and was intended to be, extensive. Section 79(1) of the Family Law Act 1975 (Vic) confers upon the Family Court the power to make such orders as it considers appropriate altering the interests of the parties to a marriage in the property of the parties. Section 75(2) permits the Family Court to take into account a wide range of matters in exercising its jurisdiction. Section 90AE gives the Family Court the power to make orders directing a third party to do something in relation to property of a party to the marriage, or to alter the rights, liabilities or property interests of a third party in relation to the marriage. Section 92 confers upon the Family Court a wide power to permit any person to intervene in proceedings. In Kennon v Spry[28] the High Court confirmed a wide meaning to the word "property" for the purposes of the Family Court's jurisdiction in altering the rights between the parties to a marriage. It may, therefore, be accepted that the Family Court has ample power to make orders in respect of such property as the parties to a marriage may have and in respect of the interests in which it is to be altered as between the parties to the marriage. It may also be accepted that the Family Court has jurisdiction to determine the rights of third parties to the marriage where a question of their respective rights arises for determination.[29] That, however, does not exclude the jurisdiction of this Court[30] and does not necessarily require a transfer to the Family Court of a proceeding which ought to be dealt with in another court.

20 At one point counsel for Mr Adam Priester submitted that a determination of the claims against his wife would be futile, would lack utility, and would be expensive, inefficient and wasteful. Imaginative scenarios were suggested to make good these submissions. The submissions, however, misunderstands the nature of the claims maintained by the plaintiffs. They are, in short, that any beneficial entitlement to the loan accounts (relevantly for Mr Adam Priester's submissions that in the name of Ms Jacqueline Lew) resides with her parents. That claim is pleaded as based upon an agreement said to have been made through Mr Solomon Lew and his daughter. For present purposes no other facts are relevant to determine the nature of the issue called upon by this Court to consider upon the summons for transfer. It is that claim, in those terms, which Mr Adam Priester maintains should be cross-vested to the Family Court. He has not yet filed a defence making any positive allegations against that claim, he has brought no counterclaim and has made no cross-claim against his former wife in the proceeding. Accordingly, the "possible scenarios" in his counsel's submissions do not arise. As against that, however, the proceeding in the Family Court would potentially benefit from the parties in that proceeding having a declaration from this Court, binding upon the parties, declaring the respective rights (if any) of Mr Solomon Lew, Mrs Rose Lew and Ms Jacqueline Lew to the loan account.

21 The task in determining whether any part of the plaintiffs' proceeding should be transferred to the Family Court is whether that Court "is more appropriate".[31] In that regard the statute requires that cases be heard "in the forum dictated by the interests of justice".[32] In Valceski Brereton J transferred a proceeding to the Family Court which included the determination of the rights of a third party. In that case, unlike this one, the issue for determination involved a choice between one of two proceedings, namely either one proceeding in the Supreme Court of New South Wales or one proceeding in the Family Court. In that context, the issue of the suit in Equity in the Supreme Court having been triggered by the matrimonial proceedings (as appears factually to have been the case also in these proceedings), his Honour concluded that the appropriate forum was the Family Court as the one place which could resolve "the whole controversy without duplication of evidence and issues".[33] In this case, however, the choice is, at a minimum, between the binding determination of an issue in this Court[34] or, at best, the same issues being litigated with duplication in the two Family Court proceedings involving, respectively, Mr Adam Priester and Ms Jacqueline Lew in one and Ms Sarah Nowoweiski and Mr Steven Lew in the other. Unlike the facts in Valceski, any transfer of a proceeding to the Family Court would necessarily compel duplication, add to cost, cause delay and expose some witnesses to the potential of cross-examination on more than one occasion.

22 An order for transfer was not made in Jane v Jane[35] in circumstances where Hansen J (as his Honour then was) considered that the determination of an issue in the Supreme Court would "bind all relevant parties" and would determine whether an asset was, or was not, within the pool of matrimonial assets. In that case his Honour said:

However, I do not accept that there will be any substantial duplication if Rodney's proceeding remains in the Supreme Court. That is because, in my view, Rodney's proceeding involves a relatively limited enquiry as to the validity of the declaration of trust. I reject Laree's submission that there is a possibility of inconsistent findings. If the Supreme Court makes the declaration sought, then the units will be excluded from the pool of matrimonial assets. If the declaration is not made, then the units will be included in the pool of matrimonial assets. Either way, the Family Court will proceed on the basis that the Supreme Court's answer to the question binds all relevant parties. In those circumstances, I do not accept that witnesses will be required to give evidence about the same matters in two different proceedings. To the extent that the same witnesses are called in the two proceedings, there is always a possibility that there will be some overlap in evidence they give, and there may be some duplication of cost in terms of separate witness statements being prepared for each proceeding, nevertheless I consider that any such overlap or duplication is incidental rather than substantial. That is all the more so given that the Supreme Court's determination of one issue will effectively remove that issue from the matters in respect of which evidence needs to be given in the Family Court proceeding.[36]

These observations apply with greater strength in this case where a determination in this Court will determine a fact relevant to two other proceedings of which one may be imminent but the other is some eighteen months into the future. In that regard I note his Honour's observation:

I accept Rodney's counsel's contention that Rodney should not be forced to litigate his claim in the Family Court proceeding in circumstances where (a) there is a relatively discrete point which can be determined in this Court and which will bind the parties; (b) the proceeding in this Court, while perhaps requiring further discovery, should be able to be fixed for trial more quickly than the Family Court proceeding; (c) Laree has not yet particularised the grounds for her relief in the Family Court, and that proceeding is still a long way off being ready for trial; and (d) the costs of the parties to Rodney's proceeding (other than Laree) might well be increased if they were forced into the Family Court litigation which encompasses a broader range of issues than Rodney's proceeding. I would also observe that in light of the parties' wish to mediate the Family Court proceeding, there would seem to be a better chance of resolving that proceeding at mediation if this Court had already determined Rodney's proceeding. That is because there would be greater certainty as to what was included in the pool of matrimonial assets.[37]

In this case one of the Family Court proceedings is imminent, but the other is "still a long way off".

23 It should be added, however, that there may also be some doubt about the state of preparedness of the parties in the imminent Family Court proceeding to deal with the claim if transferred. Any transfer would have the practical effect of joining Mr Solomon Lew, Mrs Rose Lew and SLC as parties in the Family Court proceeding to maintain their claim to the loan account in the name of their son Steven Lew as against what can expected to be the claim by Ms Sarah Nowoweiski that the moneys in the loan account in the name of her former husband is property of the parties to the marriage and not beneficially solely that of Mr Solomon Lew and Mrs Rose Lew. No submissions were made or evidence put before me about the consequences for the preparedness of the Family Court proceeding currently said to be imminent upon the assumption that a transfer was made of that part of the proceeding presently overlapping with that due to be heard in May.

24 The proceeding between Ms Sarah Nowoweiski and Mr Steven Lew was commenced on 23 February 2009 and on 6 December 2011 was set down for hearing to commence on 1 May 2012. During the directions hearing counsel representing Ms Sarah Nowoweiski was asked whether third parties were going to be joined and replied:

We're certainly not joining any, your Honour. There is an argument on the other side, I think, as to the ownership of a fund of money.

The current proceedings in this Court were then commenced on 22 December 2011 and it was not until 6 February 2012 that the application by Ms Sarah Nowoweiski in the Family Court proceeding was amended to add a claim for a declaration that the husband was the beneficial owner of all amounts distributed to him and held for and on his behalf by loan or otherwise in the Lew Custodian Trust. No submissions were made to me, and no materials were provided to me, about the impact on the hearing date of any transfer by this Court of any proceeding by which the plaintiffs in the transfer of the proceeding become parties in the Family Court proceeding.

25 A similar result to Valceski was reached in Kosmopoulos v Kosmopoulos[38] where Warren CJ, like Brereton J in Valceski, transferred the whole of the proceeding to the Family Court. In that case, as in Valceski, her Honour concluded that justice could best be served "by the one court resolving the whole justiciable controversy in order to avoid both duplication and inconsistency".[39] Again the fundamental difference between that case and this one is that a transfer of any part of this proceeding to the Family Court would not resolve the whole of the justiciable dispute capable of being determined in this Court so as to avoid both duplication and inconsistency. At the very least the same issue would need to be litigated and resolved twice; that is, in each of the two Family Court proceedings.

26 These considerations are sufficient to decline the respective applications for transfer of the proceeding to the Family Court. There were some additional reasons in the submissions for Mr Adam Priester put in favour of the transfer he sought to which I have not made specific reference. Nine headings appeared in the submissions filed on his behalf as reasons for the transfer. I have dealt with most of them during the course of my reasons above. The headings included such matters as the alleged lack of utility, expensiveness, inefficiency and wastefulness of the proceeding being maintained in this Court. Many of the nine headings overlap and raise general considerations such as comity and proper administration of justice which, in the end, point in neither specific direction. Indeed, some of the considerations were stated with such generality as to be difficult to apply or to see in which way they might tend in this instance. Thus, for example, it was said that the parties to a Family Court proceeding, unlike the parties to a Supreme Court proceeding, had the benefit of extensive protections under s 121 of the Family Law Act 1975 (Cth) protecting the privacy and confidentiality of the parties to the matrimonial proceedings. The section undoubtedly applies and confers a valuable protection but it is difficult to see in what meaningful way that part of the proceeding sought to be cross-vested on Mr Adam Priester's application would significantly detract from or undermine the protections. The section would undoubtedly continue to apply to all other matters which should be dealt with in the Family Court proceeding apart from that part dealing with the enforceability of an alleged agreement under general law. The submission also took no account of this Court's wide powers to protect the confidentiality, privacy and legitimate forensic rights afforded under law. In an appropriate case this Court can make orders in a proceeding to ensure that any rights otherwise available under s 121 of the Family Law Act 1975 (Cth) are not inappropriately lost. It was also asserted that the parties might be "hamstrung" by the Harman principle because of "an inability to put all relevant evidence before the Supreme Court" in order that the issues be properly ventilated. However, no particulars were identified of anything upon which the implied undertaking might actually apply beyond the general statement of a possibility. Furthermore, there was no consideration of how the Harman principle might apply to restrict the authority of this Court to compel production of documents or the subpoena of witnesses as part of its own processes.[40] It was also contended that the Family Court had "a unique power to make "Barro Orders" - ordering that one spouse provide the other with funding to conduct their side of the matrimonial proceeding". In relation to Mr Adam Priester such an order was made in September last year. However, this Court has power to permit the joinder of the proceedings upon conditions and those conditions can include that a party pay the costs of another. Such a condition is appropriate in this case where the plaintiffs seek to maintain an agreement which, if successful, will defeat what might otherwise be thought to have been a reasonable expectation of strangers to the agreement whose interests may be defeated if that agreement is upheld. It might also be appropriate on the separate basis of ensuring that the court has before it the true controverters to the claim which might not otherwise be adequately tested or might conceivably not be tested by the parties with greatest interest that it be tested.

27 The final matter to consider is the application for a stay which was made on the grounds that this Court was a clearly inappropriate forum or that it would otherwise be oppressive or vexatious for the proceeding to continue.[41] Counsel for all parties, except counsel for Mr Adam Priester, relied upon the decision in Voth v Manildra Flour Mills Pty Ltd[42] in regards to this submission. Counsel for Mr Adam Priester contended that Voth did not apply and that the principles to be exercised under r 23.01 were those in Re ANB Ltd No 10.[43] It is unnecessary for me to consider whether Voth be the case to apply because on any view it follows from what I have previously said that the application must fail.

1. The respective summonses dated 13 February 2012 and 20 February 2012 will be dismissed;
2. The plaintiffs will have leave for the joinder of the proceedings nunc pro tunc upon the thirdnamed plaintiff's undertaking given by counsel that the plaintiffs will amend their further amended statement of claim to delete the claim for costs against Ms Sarah Nowoweiski and Mr Adam Priester and will pay the costs of all parties to the litigation on a party/party basis subject to any ruling of the trial judge.

1. The proceeding will be listed for further directions at 4.15pm today.

I will also then hear the parties on any application for costs.

[1] Supreme Court (General Civil Procedure) Rules 2005 (Vic), rule 9.02.

[2] [1980] HCA 54; (1980) 145 CLR 609.

[3] [1986] VicRp 73; [1986] VR 735.

[4] Payne v Young [1980] HCA 54; (1980) 145 CLR 609, 611 (citations omitted).

[5] Ibid 614-5 (Barwick CJ), 615 (Stephen J), 615-8 (Mason J).

[6] [1986] VicRp 73; [1986] VR 735.

[8] [1986] VicRp 73; [1986] VR 735, 741.

[10] O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566, 577 (Starke J).

[11] [2007] VSC 43, [21].

[12] [2009] FCA 699.

[13] Ibid [11]; adopted in Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110, [29].

[14] [2007] VSC 43.

[15] Evidence Act 2008 (Vic) s 55; O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566, 577 (Starke J).

[16] Evidence Act 2008 (Vic) s 97; O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566, 577 (Starke J).

[17] Jane v Jane [2008] VSC 341, [23].

[18] Bishop v Bridgelands Securities (1990) 25 FCR 311, 314.

[19] Jane v Jane [2008] VSC 341, [23].

[20] [2009] VSC 144.

[22] (1989) 96 FLR 145.

[23] [1993] FCA 65; (1993) 40 FCR 452.

[24] Jackson v John Fairfax & Sons Pty Ltd (1989) 96 FLR 145, 152; Soverina Pty Ltd v Natwest Australia Bank Ltd [1993] FCA 65; (1993) 40 FCR 452, 458.

[25] Jackson v John Fairfax & Sons Pty Ltd (1989) 96 FLR 145, 153.

[26] (1990) 20 NSWLR 300.

[27] [1993] FCA 65; (1993) 40 FCR 452, 458.

[28] [2008] HCA 56; (2008) 238 CLR 366.

[29] Valceski v Valceski [2007] NSWSC 440.

[31] BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, 421 [14] (Gleeson CJ, McHugh and Heydon JJ).

[33] Valceski v Valceski [2007] NSWSC 440, [76].

[34] Jane v Jane [2008] VSC 341, [23].

[35] Jane v Jane [2008] VSC 341.

[38] [2008] VSC 402.

[39] Ibid [25] quoting Brereton J in Valceski v Valceski (2007) NSWSC 440, [85].

[40] Griffiths & Beerens v Duggan (No 2) [2008] VSC 230.

[41] Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538; State Bank of New South Wales Ltd v Stenhouse Limited (1997) Aust. Torts Reports 81-423; Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, 589-90 (Dawson, Gaudron, McHugh and Gummow JJ).

[42] [1990] HCA 55; (1990) 171 CLR 538.

[43] [2009] VSC 566; [2009] 76 ACSR 181.