Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 5(4)

Dougherty and Dougherty v Dougherty [1987] HCA 33; (1987) FLC 91-823

Fulton v Hegyi (1993) FLC 92-389

Hallawi v Australian Guarantee Corporation Ltd (1989) FLC 92-045

Harrison v Trewhella (1994) 13 WAR 394

Kenda v Johnson (1992) 15 Fam LR 369

Marriage of Canik [1995] FamCA 16; (1995) FLC 92-589

Marriage of Kozma (1993) FLC 92-337

MJH Pty Ltd v Hannes (1990) FLC 92-140

Super v Super (1989) FLC 92-048

1 MURRAY J: On 27 April the plaintiff commenced an action in this Court. The endorsement of claim on the writ claims a declaration that the first defendant holds land, which for present purposes is sufficiently described as Wellington Location 1177, on a constructive trust for the plaintiff and the third defendant. Alternatively, a declaration is sought that the second defendants hold their shares in the first defendant, the registered proprietor of the land, on constructive trust to leave the shares upon their deaths to the plaintiff and the third defendant. The plaintiff's claim has not been fully pleaded by way of a statement of claim. Indeed, apart from the issue of the writ and the entry of appearances, nothing has happened in the action. It would seem that that is by the plaintiff's choice because it was always intended that, the action having been instituted in this Court, an application would be made seeking its transfer to the Family Court, in which Court, on 21 September 1998, the plaintiff commenced proceedings against the third defendant.

2 The application made in that Court recites that the plaintiff and third defendant having been married in October 1984, they finally separated in September 1996. The proceedings are for divorce and final orders are sought that the four children of the marriage should reside with the plaintiff and she should have sole parental responsibility for them. I was told that custody and guardianship matters are not in issue, but the third defendant has sought contact with the children and there may be a contest about that. Further, the plaintiff has applied for orders settling property matters as between she and her husband, and for lump sum spousal maintenance.

3 If the plaintiff was to succeed in her claim for a declaration of constructive trust against the first defendant and in obtaining consequential orders for the determination of that trust in favour of her and her husband, then that would provide the overwhelming proportion of the matrimonial property available to satisfy the order sought by the plaintiff in the Family Court by way of alteration of property interests as between husband and wife.

4 If her claim does not succeed, or if it succeeded in the form of a declaration against the second defendants that they hold their shares in the first defendant on constructive trust to leave those shares upon their deaths to the plaintiff and the third defendant, then there would be no such accretion to the matrimonial property and the property otherwise available for division between the parties is meagre indeed, constituting the net value of about $13,470 of property comprised of motor vehicles, a motor cycle and household furniture. I was told that there was little likelihood that if that was the totality of the property available, there would be any substantial contest as to how it should be dealt with. Indeed, the plaintiff in this regard has simply sought to keep the contents of the matrimonial home and the motor vehicle which are in her possession.

5 Under the Family Law Act 1975 (Cth) s 75(2), in considering an order for spousal maintenance, the court is to take into account the various matters specified which may be generally described as matters personal to each of the parties, their property and financial resources, their commitments to maintain children and otherwise, their eligibility for any pension or allowance, their incomes or earning capacity, the financial circumstances relating to any current cohabitation, the terms of an order made or proposed to be made in relation to the property of the parties and the like.

6 An order altering the interests of the parties in property is made under s 79 of the Act and under s 79(4) the court is to take into account the financial contribution made directly or indirectly by or on behalf of a party to the marriage in respect of the acquisition, conservation or improvement of property of the parties or either of them, contributions other than of a financial kind made directly or indirectly by the parties to the acquisition, conservation or improvement of property, or to the welfare of the family generally, including a contribution in the capacity of homemaker or parent, the effect of any proposed order on the earning capacity of the parties, the matters relevant under s 75(2) and the like.

7 From that brief reference to the relevant legislation it can be seen that the first step in considering the making of such an order would be to establish what is the property of the parties or either of them, what is the available pool of property which may be the subject of an order. Then in considering the order to be made, it will be necessary to examine the past contribution of the parties respectively to the property in question and to the marriage, and finally it will be necessary to consider their future needs and commitments. I was told that the procedure in the Family Court in a defended case would be to try out those issues in relation to property matters together, although it may be that they would be dealt with separately from issues of custody and access.

8 However, I proceed upon the basis that the first and second defendants would, if the plaintiff's claim to an equitable interest in location 1177 was to be tried out in the Family Court, be necessarily involved in a hearing in that general form, although they would be specifically interested only in the aspect of the case which would be concerned to establish whether an interest in location 1177 formed part of the matrimonial property of the plaintiff and the third defendant.

9 It is clear from the affidavit evidence before me that the plaintiff's claim to an equitable interest in location 1177 is hotly denied by the second defendants and through them by the first defendant, and also by the third defendant, despite the fact that the plaintiff's claim may be seen to be for the benefit of the third defendant as well as for her benefit. I need refer to matters of fact in relation to the property only briefly.

10 Location 1177 is a piece of land of about 143 ha in area. It is rural land near Collie. With adjoining locations 1160 and 1161, respectively 254 acres and 140 ha in area, which abut the Collie River, the land forms a small farm. The first defendant is the registered proprietor. It is the second defendants' family company. Although they have two sons, the third defendant and one other, they are the only shareholders and directors of the first defendant. Their sons have no legal or beneficial interest in that company. The family home of the second defendants is on location 1161. The whole of the land which comprises the farm is mortgaged to a bank to secure an overdraft on the farming business. I do not know the extent of the overdraft, but it is clear that the bank as mortgagee would be interested in, and entitled to be heard upon, the making of any court order affecting the encumbered land and having the potential to reduce their security.

11 Originally, when they commenced cohabitation, the plaintiff and the third defendant resided in a house owned by the third defendant in Collie. After some time he approached his parents with the proposal that that property should be sold, additional money should be raised by him (as it was) and a home should be built on location 1177 as a more desirable residence for the plaintiff, the third defendant and their children, giving their children the benefit of a farm upbringing. This proposal was agreed to. A small portion of location 1177 was fenced off to accommodate the house which was to be built and its garden. The house was built, a pool was installed and other improvements were made.

12 Apart from the legal questions arising out of the plaintiff's claim for an equitable interest in the house and land, there is substantial disagreement in fact between the parties as to whether or not any interest in the land was promised by the second defendants to the plaintiff and the third defendant, and as to their respective contributions to the land and its improvement. As I have said, the plaintiff's claim has not been specifically pleaded and so it is necessary to rely on the parties' affidavits to show something of the nature of the dispute which arises.

13 The defendants say that they consider it to be desirable that the action should remain in this Court so that they may take advantage of the process of pleading, so that they may interrogate, if necessary, when they see the plaintiff's case more precisely formulated, so that they may seek discovery and so that, as the first and second defendants foreshadow, they may test the plaintiff's capacity to maintain her claim by an application for summary judgment. I am not in a position to comment, and it is unnecessary that I should comment, upon the likely course of the action in this Court.

14 As I have said, what is clear is that wherever the matter is tried, the plaintiff's claim will be hotly contested by all the defendants. The plaintiff says she effectively made a financial contribution to the construction of the house and she was promised that the third defendant would eventually become the owner of the land in question, and that in turn the children would inherit the land. She says this was confirmed by the second defendants. She says she made a contribution of a substantial kind to the improvements that were made and she would not have made her contribution except upon the basis that she was to have an equitable interest in the property.

15 On the other hand, the second defendants say that they merely permitted the construction and occupation of the home as a favour to their son and his family. Their property, they say, is small and barely viable economically as it is. They made it clear, they say, to both the plaintiff and the third defendant that neither the third defendant nor the two of them would derive any interest in the land. The third defendant agrees that this was the situation.

16 The plaintiff's application made on 4 June 1999 is for the transfer of the proceedings initiated in this Court to the Family Court of WA. The application is brought pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 5(4) which effectively provides that where it appears to this Court that -

(1) the relevant proceeding is related to the proceeding pending in the Family Court and it is more appropriate that the relevant proceeding be determined by the Family Court, or

(2) it is otherwise in the interests of justice that the relevant proceeding be determined by the Family Court -

this Court is to transfer the relevant proceeding to the Family Court.

17 It will be seen that there is no discretion about whether or not to order a transfer. If the pre-conditions, or either of them, for the making of the order appear, then the order must be made. In Dawson v Baker (1994) 120 ACTR 11 at 14 Miles CJ said:

"...the decision whether a transfer is or is not in the interests of justice is in the nature of a value judgment. Once the value judgment is made there is no discretion as to whether or not an order should be made. The court must order the transfer or refuse to order the transfer in accordance with a decision whether to do so is in the interests of justice."

18 I am satisfied that the applicant bears the onus to persuade the court that the value judgment to be made is that which would require a transfer of the proceedings. In Chapman v Jansen (1990) 100 FLR 66, a decision of the Full Court of the Family Court, at 74, Nicholson CJ remarked:

"Where proceedings have been instituted by a litigant in a court having jurisdiction, anyone seeking to displace that jurisdiction at least carries the forensic onus of persuading the court that it ought to order a transfer."

That the applicant for the transfer bears the onus to establish the existence of one or more of the relevant criteria requiring the making of the order was the view of Ipp J in Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1990) 1 WAR 531, 537-9 and White J in Woodard v H & J Nominees Pty Ltd (1993) 17 Fam LR 327, 333. I expressed the same view in Leithead v Leithead (1991) 15 Fam LR 56, 60. I appreciate of course that the matter might well be different if the court where the litigation is commenced would not have jurisdiction other than by virtue of the laws relating to cross-vesting of jurisdiction, or if the court proposes to exercise the jurisdiction to order a transfer of its own motion: Bank Invest AG v Seabrook (1988) 14 NSWLR 711, 727.

19 The first matter upon which the applicant relies is the proposition which is contained in the Act s 5(4)(b)(i) that the action in this Court is related to the proceeding pending in the Family Court and it is more appropriate that this action be determined by the Family Court. I had to consider the same provision in Leithead and I was then content to follow the decision of Beaumont J sitting as the Supreme Court of Norfolk Island in Re Hamilton-Irvine & Companies Act 1985 (1990) 94 ALR 428. In that case the applicant was the respondent's wife. She had commenced proceedings in the Family Court seeking orders altering the interests of the parties of the marriage with respect to their property. In the Supreme Court of Norfolk Island her husband had sought leave to be appointed as a director and secretary of a company, thus lifting the bar consequent upon his conviction for certain offences. The applicant was also a substantial shareholder in, and director of, the company in question. Her interest then was to preserve the value of the company and its shares.

20 At 432-3 Beaumont J held first that it could not be said that the proceeding before him "arises out of" the proceeding in the Family Court. To establish that would require some causal relationship, even if not of a direct or proximate kind, between the two proceedings so that it might be said that one "results, or proceeds or originates from or out of" the other. Clearly in this case it could not be said that the action in this Court results, or proceeds or originates from or out of the proceeding in the Family Court. There is no direct or indirect causal relationship between the two sets of proceeding as such. It was no doubt for that reason that, as I understand the submissions made by counsel for the applicant, this particular aspect of par (i) of s 5(4)(b) was not relied upon, but attention was focused upon the relationship between the two proceedings.

21 In Re Hamilton-Irvine at 443 Beaumont J considered that the relevant relationship between the proceedings would be a "nexus or association between them as such". There would need to be some connection between the two sets of proceedings. His Honour found that merely to demonstrate that the wife, as the initiator of the proceeding in the Family Court, had an interest as a shareholder and director of the company which was the subject of the proceeding before him was insufficient to establish the requisite nexus or association between the two sets of proceedings. In Leithead I took a similar view in respect of proceedings in the Supreme Court by the plaintiff wife for a declaration of trust in relation to a home unit owned by her former husband and proceedings in the Family Court, which were an application for spousal maintenance, but not to establish the nature of the matrimonial property or to alter the proprietary interests of husband and wife under the Family Law Act s 79. At 61 of that case I took the view that merely to establish a factual relationship between the subject matter of the proceedings was not to establish an association or connection or nexus between the proceedings themselves.

22 In this case, however, I would take a contrary view because here, I think, there is a direct relationship between the two sets of proceedings. That in the Supreme Court seeks as one form of relief a declaration that the plaintiff has an equitable interest in the former matrimonial home and the land upon which it is constructed. The proceeding in the Family Court also necessarily involves the establishment of such an interest in the husband and wife, or either of them, so that the realty in question becomes part of the matrimonial property which then be made the subject of an order under the Family Law Act s 79 for the alteration of the property interests of the parties to the marriage. In my view the two sets of proceedings are related in the relevant sense and it will be necessary to consider whether it is more appropriate that the action in this Court be determined by the Family Court.

23 I am fortified in that view by the decision of Williams J in the Supreme Court of Queensland in Fox Enterprises Pty Ltd v Fox (1995) 13 ACLC 573, a case in which Re Hamilton-Irvine and Leithead were distinguished as his Honour came to the view that the case before him was one in which proceedings in the Supreme Court were related to property settlement proceedings pending in the Family Court and that it was more appropriate that the proceedings in the Supreme Court be determined by the Family Court.

24 The Family Court proceedings were brought by the wife. One of the items of property she claimed was as a joint owner of a residential property which was the former matrimonial home and in respect of which in the Supreme Court a company claimed an interest by way of constructive trust as a result of contributions it alleged it had made for improvements to the property. The wife was a shareholder in the company. The other shareholders and directors were her husband and his present de facto spouse. Williams J held the proceedings to be related because, as his Honour put it at 576:

"The issues to be determined primarily relate to the matrimonial affairs of the parties and involve the question as to what extent the interests of the former husband and wife in the subject property are diminished because of an interest held by a company in which at all material times they were the sole directors and shareholders."

25 The applicant also relies upon the proposition which emerges from the Act, s 5(4)(b)(iii) that it is otherwise "in the interests of justice" that the action in this Court be determined by the Family Court. In Mullins Investments at 536-8 Ipp J expressed the view that the expression "the interests of justice" in this paragraph is to be construed so as to give effect to the purpose of the Act to overcome difficulties and inconvenience and expense as to the jurisdictional limits of Federal, State and Territory Courts and to enable "those exceptional cases where there are jurisdictional uncertainties or where there is a real need to have matters tried together in the one Court" to be resolved, while at the same time not encouraging forum shopping. So it seemed to his Honour that the concept of the interests of justice in this paragraph was "used in a somewhat limited sense" and was "not meant to be interpreted without limitation".

26 In Platz v Lambert (1994) 12 WAR 319 Malcolm CJ followed Mullins Investments and an earlier decision of Ipp J, Bond Brewing Holdings Ltd v Crawford (1989) 1 WAR 517. At 323 his Honour said:

"In my opinion, the words 'the interests of justice' as they appear in this statute, while intended to confer upon the Courts a wide discretion in order to achieve the broad purposes of the legislation, are not to be interpreted as in no way subject to any limitation, such as would be the case if, for example, the principle of forum non conveniens were to be taken into account."

27 I do not propose to develop a discussion about the principle of forum non conveniens beyond the observation that as a matter of private international law, a stay of proceedings will only be granted where their continuation might be characterised as vexatious or oppressive. I do not think that Malcolm CJ and Ipp J were saying that such an approach should be taken to an application under the cross-vesting legislation, but merely that the concept of the interests of justice was not without limitation.

28 However, in Chapman v Jansen at 74-5 Nicholson CJ said:

"In my view, the expression, the 'interests of justice' is not one which should be narrowly defined and indeed it may not be particularly helpful to attempt to define it at all. I do not think that it is a concept which courts should find difficult to apply. The interests of justice will vary from case to case, and I think that, in general, in considering applications under this legislation, a broad approach is the approach to be preferred. I think also, that in considering applications for transfer, courts should be careful to avoid drawing unfavourable comparisons with each other, whether as to delays, capacity or procedures."

29 In Dawson v Baker, a quite different case from this factually, Miles CJ at 14, in similar vein to the remarks of Nicholson CJ, adopted what Street CJ said in Bank Invest AG at 714 that:

"...it can be seen to be highly desirable that the judicial administration of the day to day working of the cross-vesting scheme is not encumbered by an encrustation of judge-made pronouncements of principles to be applied when considering making a transfer order. It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. Consideration of textured principle and deep learning - in particular principles of international law such as forum non conveniens - have no place in a cross-vesting adjudication."

For myself, with respect, I think there is much to be said for this approach.

30 In Dawson v Baker Higgins J, with whom Gallop J agreed, considered that whilst there might be an overlap between the considerations which would affect the court's judgment as to whether another court was the more appropriate forum and the question whether it was otherwise in the interests of justice to order the transfer of the proceeding, a court might be persuaded that a transfer was required in the interests of justice for reasons which have nothing to do with the appropriateness of the transferee court or the inappropriateness of the transferor court. His Honour said it was possible to isolate some matters which would be significant in determining whether it is in the interests of justice to order a transfer and, without purporting to give a closed list, he mentioned the question of the substantive law to be applied, the question whether a party might gain or lose a proper forensic advantage conferred by procedural law if a transfer was made, the plaintiff's choice of forum and the reasons for that choice, the question of substantive connections with the forum, the balance of convenience to parties and witnesses and the convenience to the court system itself.

31 Again, I am content to be guided by such observations. The central point being made is that the appropriateness of a forum and the interests of justice in a particular case will depend very much upon the circumstances of that case. Care must be taken in this area that previous decisions are seen for what they are. Very few give any guidance in the form of statements of general principle. Most are simply applications in particular circumstances of the making of the value judgment called for by the Act. The cases to which I refer are Carey v Carey, unreported; SCt of WA; Franklyn J; Library No 8307; 14 June 1990; M v Bellitto, unreported; Wallwork J; SCt of WA; Library No 960232; 30 April 1996; Miller v Miller, unreported; Heenan J; SCt of WA; Library No 980340; 19 June 1998 and Stanley v Stanley Exploration Services Pty Ltd, unreported; Miller J; SCt of WA; Library No 980709; 14 December 1998.

32 It seems to me that the questions of the most appropriate forum and the interests of justice in this case are to be determined having regard to procedural matters and questions concerned with the balance of convenience to the various parties. Certainly the plaintiff chose the Supreme Court as the forum for her action, but she did so because she could not initiate the proceedings in the Family Court, so it is thought, and she always intended to make the present application. All the parties point out to me that they lack means. The plaintiff is on a limited grant of legal aid. It is obviously desirable that there be no multiplicity of proceedings, but I think if the plaintiff's action remains in this Court, that would not occur. The judgment of this Court would resolve that nature of the interests of husband and or wife (if any) in location 1177.

33 As I said in Leithead at 60, that matter would no doubt be res judicata in the Family Court. Certainly an issue estoppel would arise and the Family Court proceeding between husband and wife would be concerned to deal with the other issues as between them, to which I have referred above, which would guide the court's discretionary judgment in the context of the Family Law Act s 75 and s 79. Those are issues which, of course, would not involve as parties the first and second defendants. In my view then the proceedings would not in this case overlap in the way for which the plaintiff contends. However, I place little weight upon the consideration that the resolution of claims for equitable interests in property is a traditional and central aspect of the equitable jurisdiction of this Court.

34 On the other hand it seems clear that if this action is transferred to the Family Court, the first and second defendants would necessarily become involved in the resolution of the wider questions about the respective proprietary interests of the plaintiff and third defendant, even if that aspect of the proceedings in that Court can be separated from the resolution of any other contested matter, such as access to children. Further, the defendants all oppose the present application. They consider that in this case they may derive an advantage from the pleading process in this Court, from the capacity to proceed to have the plaintiff's claim summarily dismissed and from the fact that in this Court, although awards of costs are discretionary, they ordinarily follow the event. On the other hand, under the Family Court Act 1997 (WA), s 237, in that Court the ordinary rule is that each party shall bear its own costs, although there is a limited discretion to award costs.

35 Having regard to those matters it seems to me that it cannot be said that it is more appropriate that the action commenced in this Court be determined by the Family Court. Nor does it seems to me to be otherwise in the interests of justice that the action in this Court be determined by the Family Court. In the circumstances mentioned above, I see no great advantage to the plaintiff in the transfer. Such advantage as there may be appears to be outweighed by the possibility of prejudice to the position particularly of the first and second defendants. The application is refused.