Makki v Makki

Makki v Makki - [2024] NSWSC 1481 - NSWSC 2024 case summary — Zoe

[3]

The District Court Proceedings

The Statement of Claim from the District Court proceedings ("the personal injury proceedings") sets out the conduct said to give rise to the cause of action, and the injuries which the plaintiff alleges the defendant caused to her during their marriage. The plaintiff alleges that throughout their relationship but particularly from February 2012 to February 2023, the defendant engaged in ongoing violence and harassment intending to cause psychiatric harm to the plaintiff and to frighten the plaintiff. The plaintiff's allegations can be summarised as including the following: 1. the defendant assaulted and beat the plaintiff including striking her over the face, causing significant injuries; 2. the defendant drove a vehicle at the plaintiff with the intention to induce a fear of harm in the plaintiff; 3. the defendant falsely imprisoned the plaintiff in a toilet at their home where she was restrained until police attended; 4. the defendant harassed and manipulated the plaintiff in many different ways including through false statements as to the plaintiff's competency, mental health, psychological well-being, physical appearance, perception of reality, memory, behaviour, and psychiatric status; 5. the defendant engaged in controlling behaviour regarding the plaintiff's appearance and clothing; 6. the defendant limited the plaintiff's financial independence and access to bank accounts, and coerced the plaintiff into entering into unfavourable financial arrangements; 7. the defendant engaged in extra-marital affairs and exposed the plaintiff to psychological harm associated with her fear of contracting a sexually transmitted disease; 8. the defendant engaged in surveillance of the plaintiff including through using concealed vehicle tracking devices, vehicle recording devices, remote camera surveillance, and stalking; 9. the defendant distributed and attempted to distribute copies of an intimate image of the plaintiff; and 10. the defendant prevented the plaintiff from engaging in employment.
The plaintiff pleaded that she suffered significant physical and psychological injuries as a result of the pleaded conduct.
All of these allegations amount to family violence as that term is defined in s 4AB of the Family Law Act.

[4]

Family Law Proceedings

Three months after filing the personal injury proceedings, on 15 May 2024 the plaintiff commenced proceedings in Division 2 of the Federal Circuit and Family Court of Australia ("the family law proceedings"). As earlier noted, these proceedings seek orders in accordance with s 79 of the Family Law Act, for the alteration of the parties' interest in the matrimonial property.
As part of the family law proceedings, the plaintiff is making a claim for a Kennon adjustment. The Family Court may consider any domestic violence or other like behaviour when assessing each party's contribution to the marriage under s 79 of the Family Law Act: Kennon v Kennon (1997) 139 FLR 118; FLC 92-757 ("Kennon"). A Kennon adjustment is approached by taking into account the nature of the contributions made by a party, which are necessarily affected by the circumstances in which those contributions are made. The causes of the respective contributions and needs of the parties are not part of the primary investigation: Fisher and Fisher [1989] Fam CA 61; (1990) FLC 92-127 at 77,847 (Nygh J).
In her affidavit sworn 15 May 2024, the plaintiff says that in the family law proceedings, she claims that her contributions were "made significantly more arduous by the pattern of abusive (including physical abuse), coercive and controlling behaviour engaged in by [the defendant]".
The plaintiff submits in this Court that the allegations of violence she made in the personal injury proceedings, which have been summarised above, are part of the facts which she will rely upon to substantiate the Kennon adjustment in her claim in the family law proceedings. It is for this reason that the plaintiff seeks to have the personal injury proceedings transferred to the FCFCA, via this Court.
On 10 September 2024, the family law proceedings were transferred by order of Beckhouse J from Division 2 to Division 1 of the FCFCA thereby enabling a transfer from this Court if it was otherwise warranted.

[6]

Transferring Proceedings from the District Court to the Supreme Court

During oral submissions, counsel for the plaintiff relied upon s 140 of the Civil Procedure Act 2005 (NSW) ("the CPA") for the transfer of proceedings from the District Court to the Supreme Court. It is in the following relevant form: "140 Transfer of proceedings to higher court (1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court. (2) ... (3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied - (a) … or (b) in any other case - (i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or (ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court."
Counsel for the plaintiff relied upon s 140(3)(b)(ii): that there is other sufficient reason for the hearing of the proceedings in the Supreme Court.
Reliance on this sub-section raised the question of whether the sub-section applied because this Court was not being asked to hear the proceedings. Counsel for the plaintiff ultimately submitted that the phrase "for hearing the proceedings" was of a sufficient width to include any, and all, interlocutory disputes and was not limited to only a final hearing. It followed, counsel submitted, that the power in s 140 extends to transferring proceedings from the District Court so as to enable this Court to hear the present interlocutory application to transfer proceedings to the FCFCA.
The parties provided further written submissions on this issue. In her further written submissions, the plaintiff referred to Qualia Wines Services Pty Ltd v Pearce [2020] NSWSC 126, a case where Adamson J (as her Honour then was) transferred proceedings from the District Court to the Supreme Court under s 140 of the CPA, in order to then transfer the proceedings to the Supreme Court of Victoria under the Cross-Vesting Act.
Her Honour did not directly address the issue raised here about the proper meaning of s 140 of the CPA. However, her Honour held that the "sufficient reason" test was satisfied if the proceedings were appropriate to be transferred to the interstate Court. Her Honour also recorded that she was "further satisfied" that the proceedings ought to be transferred pursuant to s 8(1) of the Cross-Vesting Act.
Alternatively, and having regard to an encouraging statement in Qualia, the plaintiff submits that should the Court not be satisfied about its power under s 140 of the CPA, the plaintiff would rely on s 8 of the Cross-Vesting Act which she submits permits the Court to transfer proceedings from the District Court to the Supreme Court to give effect to an order to transfer the proceedings to the FCFCA: see Bechtel Constructions (Australia) Pty Ltd v Muhannad Alkhattab [2016] NSWSC 1749, a case in which Campbell J found it unnecessary to rely on s 140 of the CPA by reason of the operation of s 8 of the Cross-Vesting Act.
Section 8 of the Cross-Vesting Act is relevantly in this form: "8 Orders by Supreme Court (1) Where - (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in - (i) a court, other than the Supreme Court, of the State, or (ii) …, and (b) it appears to the Supreme Court that - (i) …, or (ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court, the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court. (2) Where an order is made under subsection (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the Supreme Court. ..."
The plaintiff submitted that under s 8(1)(b)(i) of the Cross-Vesting Act, if it appears to the Supreme Court that the District Court proceedings are related to proceedings in another court, in this case the FCFCA, and that an order should be made so that consideration can be given to whether the District Court proceeding should be transferred to another court, the Supreme Court may order the removal of the District Court proceedings to the Supreme Court.
Further, the plaintiff submits that by reason of s 8(2), the Court may treat the relevant proceeding as if it were a pending proceeding in the Supreme Court for the purpose of the requirement of s 5(1)(a) of the Cross-Vesting Act, which I will consider below.
Finally, the plaintiff noted that pursuant to s 8(3), if the application to transfer proceedings to the FCFCA is unsuccessful, the Supreme Court can remit the personal injury proceedings back to the District Court.
Counsel for the defendant accepted that the Court by reason of s 8(1)(b)(ii) of the Cross-Vesting Act, has power to transfer proceedings from the District Court to the Supreme Court for the purpose of considering or ordering that the proceedings be cross-vested to the FCFCA.
I do not accept the plaintiff's submission that the appropriate provision of the Cross-Vesting Act is s 8(1)(b)(i). That provision relates to a power being exercised in anticipation of the "foreign" proceedings being transferred to this Court. Rather, as the defendant submits, the provision which is apt to apply in this application is s 8(1)(b)(ii) of the Cross-Vesting Act.
There seems to me to be considerable uncertainty about whether s 140 of the CPA permits a transfer of proceedings from the District Court to this Court, where the sole purpose of the transfer is to enable the Court forthwith to cross‑vest the proceedings to another court. I prefer the construction that this would not fall within the section but, having regard to the abundant power in s 8 of the Cross-Vesting Act, it is unnecessary for me to finally decide the proper application of s 140 of the CPA in these proceedings.
In due course, if I am satisfied that the personal injury proceedings ought to be cross-vested to the FCFCA, I will make an order removing the personal injury proceedings from the District Court to the Supreme Court under s 8(1)(b)(ii) of the Cross-Vesting Act.

[7]

Transferring Proceedings from the Supreme Court to the FCFCA

Section 5 of the Cross-Vesting Act enables proceedings to be transferred from the Supreme Court to the FCFCA: "5 Transfer of proceedings (1) Where - (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court, and (b) it appears to the Supreme Court that - (i) (Repealed) (ii) having regard to - (A) whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Federal Circuit and Family Court of Australia, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Federal Circuit and Family Court of Australia, (B) the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and (C) the interests of justice, it is more appropriate that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia, as the case may be, (iii) (Repealed) the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Federal Circuit and Family Court of Australia, as the case may be."
The plaintiff submitted that whilst the Court may consider each of the three matters set out in s 5(1)(b)(ii) at (A), (B) and (C) of the Cross Vesting Act, those matters are not cumulative requirements in determining whether it is more appropriate that the proceedings be heard in the FCFCA. So, she submits, it follows that if the matters in (A) and (B) are not satisfied, the Court may still determine under (C) that it is in the interests of justice for the proceedings to be transferred.
In support of this submission, the plaintiff relied upon the judgment of Slattery J in Zhang v Levingson [2023] NSWSC 1559 at [29], where his Honour said: "The preponderance of authority on the operation of section 5(1)(b)(ii) is that the Court is required to consider all three paragraphs (A), (B) and (C) and that it is not necessary for one or other paragraph to be satisfied before another can be considered."
Having reviewed the authorities in which this approach was applied, Slattery J said at [30]: "…notwithstanding that the Court might find, as it does here, that subparagraphs (A) and (B) are not satisfied, the Court may nevertheless, in consideration of subparagraph (C), the interests of justice, find that it is "more appropriate" for the proceedings to be determined by the Federal Circuit and Family Court of Australia and heard with the Family Law proceedings."
I will follow this approach that it is open for the plaintiff to rely on only one of the matters identified in paragraphs (A), (B) and (C). I note that the defendant did not dispute that this was the correct approach.
The plaintiff submits s 5(1)(b)(ii)(A) does not apply in this case as it is "uncontroversial" that the plaintiff could not have commenced the personal injury proceedings in the FCFCA. The plaintiff submits s 5(1)(b)(ii)(B) does not apply as the personal injury claim does not arise under Commonwealth legislation. As such, in order for the proceedings to be transferred, the plaintiff accepts that she can only rely on the Court's consideration of the interests of justice: s 5(1)(b)(ii)(C).
The plaintiff submits that the interests of justice dictate that it would be more appropriate for the personal injury proceedings to be determined by the FCFCA. The plaintiff referred to Comino v Kremetis [2023] NSWSC 32 where Chen J set out at [70] the "well‑established" authorities relating to "the interests of justice" in the context of s 5 of the Cross-Vesting Act, which summary I respectfully adopt: "70. The authorities dealing with the residual provision (viz., the "interests of justice") are well-established. Relevantly, they may be summarised as follows: (1) The determination of whether it is in the "interests of justice" under s 5(2)(b)(iii) for proceedings to be transferred depends on what is the "more appropriate" forum for those proceedings without any particular emphasis in favour of the forum selected by the plaintiff: James Hardie & Company Pty Limited v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 at [87] ('Barry'); BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14] and [25]. ('Schultz'). This last matter is sometimes expressed to the effect that there is no principle in the application of the Act that the jurisdiction chosen by the plaintiff and regularly invoked is not lightly to be overridden: Schultz at [25]. (2) Although it has been suggested that there is strictly no onus upon either party to persuade the Court to transfer the proceedings or not, the better view is that the applicant for transfer has to persuade the Court to make the order it seeks: Barry at 380 [100]. That is, unless "it appears" that the proceedings should be determined in another court, "the court does not have power under the act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion": Irwin v State of Queensland [2011] VSC 291 at 14. (3) The Court must make a "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": Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 714 ('Bankinvest'); Barry at [87]; Schultz at [14] and [63]. Put slightly differently, the interests of justice are "concerned with the question of which jurisdiction is better placed to determine a dispute between the parties from a practical point of view": Opes Prime Stockbroking Ltd (In Liq) (Scheme Administrators Appointed) v Stevens [2014] NSWSC 659 at [25]. (4) Rather than the selection of the most advantageous, or least disadvantageous, forum for one of the parties, the "interests of justice" are to be judged by objective factors to facilitate identification of the "natural forum", in which it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party: Valceski at [69]. (5) The interests of justice include a range of matters such as the governing law, forensic advantages and disadvantages, balance of convenience to the parties and the witnesses and convenience to the Court system: Barry at [95]. (6) If "it appears" that one court is more appropriate than the other, however so slightly, then a transfer to the more appropriate court is mandatory; no question of discretion arises: Valceski at [70]."
I will keep these matters in mind when considering the parties' submissions regarding the evaluation of the interests of justice and the question of whether the proceedings should be transferred.
It is now convenient to consider the first issue posed by the parties.

[8]

Does the FCFCA have Jurisdiction to Hear and Determine the Personal Injury Proceedings alongside the Family Law Proceedings?

The plaintiff submits that the jurisdiction of the FCFCA to hear matters arising under the Family Law Act extends to determining the whole of the "matter" i.e., the justiciable controversy, including any aspects that may arise under a State law rather than Federal law. Claims which arise under a common sub-stratum of facts can be encompassed in a single "matter". The plaintiff referred to the judgment in Akbar v Gandega [2023] FedCFamC1A 174; (2023) 382 FLR 170 where the Court said: "29. However, when federal law, like the Act, confers original jurisdiction on a federal court in respect of a "matter" - such as the matrimonial cause concerning the adjustment of spouses' property interests - the jurisdiction extends to authorise the determination of the whole "matter", the entire resolution of which controversy may entail the consideration and application of both federal and State law... 30. Nevertheless, the authority to decide the non-federal aspects of the justiciable dispute only arises when such non-federal aspects are an integral part of the same controversy."
The appropriate approach was articulated by the majority (Mason, Murphy, Brennan and Deane JJ) in Fencott v Muller [1963] HCA 12; (1983) 152 CLR 570 at 708 in these terms: "What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in the controversy are defined and the claims for relief are set out."
The majority added: "But in the end, it is a matter of impression and practical judgment whether a non‑federal and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter."
Generally, there will be a single controversy or matter if different claims arise out of "common transactions and facts", or a "common substratum of facts": see: Re Wakim; Ex Parte McNally [1999] HCA 27; (1999) 198 CLR 511 at [140]. Mere close association is not sufficient: Stack v Coast Securities (No.9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261 at 278.
The plaintiff submits the FCFCA's jurisdiction to determine the whole matter includes the power to grant appropriate remedies outside those remedies within the Family Law Act, and can include remedies under State law (or the common law): Fencott at 603-608; Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 at [49]-[57] (Bell, Gageler, Keane, Nettle and Gordon JJ).
The defendant submits the Summons should be dismissed because the FCFCA does not have jurisdiction to hear the personal injury proceedings. The defendant relies upon what it submits to be an uncontroverted line of authority indicating the FCFCA does not have jurisdiction to hear the personal injury proceedings. The defendant refers to Pichard v Pichard [2022] FedCFamC1F 549 ("Pichard"), a matter in which Riethmuller J declined to join the applicant's common law personal injury proceedings to her de facto property settlement proceedings. His Honour observed at [27]: "Hearing this application at first instance, I should not depart from previous single judge decisions unless I am satisfied that these decisions are clearly or plainly wrong: see BHP Billiton Iron Ore v The National Competition Council (2007) 162 FCR 234 at [88]. I am not persuaded that the approach adopted in Saba, Yen, Crampton & Robinson, and Tullo is clearly or plainly wrong. If this line of authority it to be challenged, it is appropriately a matter for the Full Court. This leads to the conclusion that the respondent's tort claims are beyond the appropriate ambit of the exercise of accrued jurisdiction by this Court when exercising its jurisdiction to determine property settlement claims in this matter."
The defendant notes that the plaintiff has not identified a decision in which the FCFCA has positively concluded that it has accrued jurisdiction to determine a tort claim when a Kennon claim has been made.
However, I note that in Pichard , Riethmuller J at [8] had said: "8. The Federal Circuit and Family Court of Australia (Division 1) is a federal court invested with federal jurisdiction. Tort claims at common law are within state jurisdiction. … However, this Court has jurisdiction in proceedings associated with a matter where the jurisdiction of the Court has been validly invoked: see s 29 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Accrued jurisdiction arises when it is necessary or desirable to deal with all of the issues that arise in a judicable controversy in one proceeding, the limits of which are set by reference to the 'matter' in the sense that that term is used in s 75 and s 76 of the Australian Constitution: see Fencott v Muller (1983) 152 CLR 570 …"
It is also apparent from his Honour's judgment, in which he reviews the first instance decisions to which he makes reference in [27], that none of those cases fell within the accrued jurisdiction of the FCFCA because there was no relevant connection between the claims being made, and there was no common substratum of facts identified. I note that in none of the first instance decisions, nor in the matter of Pichard was any claim for a Kennon adjustment being clearly made. In all of those circumstances, I do not understand the decision of Riethmuller J in Pichard to stand against a conclusion that the FCFCA, under no circumstances, has jurisdiction to determine a tortious claim for damages. Rather, Pichard follows the conventional approach of requiring the party claiming damages for a tort to demonstrate that the accrued jurisdiction has been engaged with respect to the state-based tort claims.
Insofar as the defendant asserts that no tort claim for damages for assault has been determined in the Family Court of Australia (or the FCFCA), such submission cannot be accepted: see In the Marriage of PG and BJ Marsh (1993) 17 Fam LR 289 (Coleman J); In W and W; R and G (by their next friend P) (Intervenor) (1994) 17 Fam LR 751 (Brown J); Re Q (Damages for sexual assault) (1994) 18 Fam LR 442 (Kay J).
Whilst I accept that the judgments of Coleman J, Brown J and Kay J preceded the decision of the High Court of Australia in Re Wakim, that is not a point of substantive difference, once this Court is satisfied that the FCFCA will have jurisdiction to determine the tort claims in this matter. There is no reason to conclude that the determination of tort claims for damages and the assessment of any damages is not within the experience and knowledge of the members of the FCFCA.
Given the claims being made in the personal injury proceedings, including the facts necessary to be provided, and the factual issues likely to arise by reason of the Kennon adjustment claim in the family law proceedings, I am satisfied that there is a sufficient common substratum of facts to such an extent as would mean that the personal injury proceedings would fall within the accrued jurisdiction of the FCFCA with respect to the family law proceedings.
I reach this conclusion for the purpose of determining the application before me. Ultimately, it would always be a matter for the FCFCA to satisfy itself as to its jurisdiction if there is any dispute about that.

[9]

Should the Personal Injury Proceedings be Transferred from the District Court to the FCFCA?

The plaintiff submits that the FCFCA is the more appropriate jurisdiction to hear and determine the personal injury proceedings.
The plaintiff submits there is a sufficient commonality of factual issues between the personal injury proceedings and the family law proceedings due to the allegations of violence and other like behaviour the plaintiff makes against the defendant. The plaintiff submits those allegations, which are the basis of the personal injury proceedings, give rise to a Kennon adjustment in the family law proceedings. In Kennon, at p 24, Fogarty and Lindemayer JJ said: "Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79 [of the Family Law Act]".
The plaintiff submits the appropriate approach in considering any Kennon claim is for a Court to take account of how the contributions made by a party are affected by the circumstances in which those contributions are made. The plaintiff submits that the evaluation of the Kennon claim necessitates the consideration by the FCFCA of the allegations of violent conduct which would create a duplication of the consideration of the common factual issues, such that the personal injury proceedings and the family law proceedings ought properly to be heard together. She submits that this would be the most efficient course for both of the courts (District Court and FCFCA) and the parties and would best reflect the interests of justice.
The plaintiff submits the interests of justice favour all issues being determined by one court, as the duplication of factual issues between the personal injury and family law proceedings means that it is inefficient for the courts and costly for the parties to have the issues determined in separate forums. Further, the plaintiff submits there is a risk of inconsistent findings between the two proceedings which cannot be fairly overcome by an order staying the family law proceedings until the personal injury proceedings have been finalised, or the other way around.
The defendant opposes the transfer and submits that, in the interests of justice, the preferable course is to stay the family law proceedings until the personal injury proceedings have been finalised, as the District Court's factual findings may well give rise to an issue estoppel between the parties as to the contested facts of the relationship: Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 at [24]; Blair v Curran (1939) 62 CLR 464 at 531-532.
The defendant submits that the existence of any issue estoppel is likely to mean that the contested issue about whether the conduct, as the plaintiff alleges occurred, will not need to be relitigated and therefore there is no real risk of inconsistent judgments. If the plaintiff is successful in the personal injury proceedings, she may rely upon the facts proven in the District Court in her family law proceedings. If the plaintiff fails to prove the allegations, she will be estopped from relying upon them: Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 603-604, 607. The defendant submits that the principle of issue estoppel sufficiently deals with the plaintiff's assertion that transferring the proceedings is in the interests of justice.
The defendant further submits that there are five additional reasons which demonstrate that it is not in the interests of justice to cross-vest the personal injury proceedings to the FCFCA. First, the FCFCA lacks the appropriate rules of court of the kind which enable the District Court to case manage and determine personal injury claims efficiently, such as the Uniform Civil Procedure Rules 2005 (NSW). Secondly, the usual rule in the FCFCA is that parties bear their own costs whereas in the District Court the usual rule is that costs follow the event. Thirdly, a transfer to the FCFCA would bring about a substantial delay as a hearing date in the FCFCA is not expected until 2026, whereas District Court hearings are currently fixing hearing dates for approximately 6-12 months' time. Fourthly, the FCFCA lacks the judicial expertise of the District Court to deal with personal injury claims including the issue of self-defence that the defendant has raised and the cross-claim that the defendant has brought against the plaintiff. Fifthly, there is a risk that the onus of proof might be lost if the personal injury proceedings were held alongside a Kennon adjustment claim.

[10]

Discernment

I commence my consideration of this issue by acknowledging and emphasising that it is generally undesirable for two Courts to be asked to make findings of contested fact which arise between the same parties and out of the same or similar factual circumstances.
It is undesirable because there is a risk that the different Courts may come to different conclusions about the credibility or reliability of one or other of the central witnesses. It is a risk because there may be inconsistent findings made without involving any credibility issues about the occurrence of contested facts. It is undesirable because it means that relevant witnesses have to give evidence twice about the same events, which may include matters which are traumatic for one or other witness. Repetition may increase the trauma.
However, Australian courts do not always operate under a coherent unitary system which is designed to enable all matters in dispute between the same parties to be heard and determined at the same time and in the same Court. Partly that is a reflection of Federation. Partly, it is a reflection of the fact that some causes of action are found in either Federal or State statutes and some are to be found in the common law. Partly, it is because in Australia, criminal jurisdiction is exercised by Courts entirely separately from their civil jurisdiction.
Another reason for this lack of unitary coherence is that from time-to-time legislatures create specialist courts of limited statutory jurisdiction. The FCFCA is a court with a limited statutory jurisdiction which specifically includes matters arising under the Family Law Act. No other court has that jurisdiction (excluding the Family Court of Western Australia). The District Court of NSW has a more general jurisdiction, but nevertheless, one which is defined in the District Court Act 1973 (NSW).
The District Court is not endowed by statute with jurisdiction under the Family Law Act to hear and determine an application for adjustment of property interests.
The FCFCA is not granted primary jurisdiction with respect to causes of action arising solely under State law or in respect of a non-Federal matter, although it may hear and determine such matters where they fall within the accrued jurisdiction of the Court.
However, this Court has been provided with the means by which, on a case‑by‑case basis, the lack of unitary coherence can be overcome. It is the powers, earlier noted, under the cross-vesting legislation. But those powers are not entirely at large, because s 5(b)(ii) requires this Court to be persuaded that having regard to the interests of justice, it is "more appropriate" that the FCFCA hear and determine the personal injury proceedings than, in effect, the District Court of NSW.
Put differently, it is not sufficient to conclude for the purpose of the plaintiff's Motion that it is appropriate for the FCFCA to hear the personal injury proceedings. Rather, this Court needs to reach the state of satisfaction that it is more appropriate for that to occur than a hearing in the state Court.
This consideration, which requires a balancing of the relevant factors which do not always point in the same direction, of whether it is "more appropriate" for the personal injury proceedings to be heard in the FCFCA, is complex.
I decline to exercise the power under s 5 of the Cross Vesting Act to transfer the personal injury proceedings to the FCFCA as the plaintiff has not satisfied me that it is more appropriate that the FCFCA hear the personal injury proceedings.
In doing so, I note that I am satisfied that the FCFCA would have jurisdiction to hear the issues arising out of the personal injury proceedings, however I am not satisfied that it is appropriate to transfer the plaintiff's claim.
I have weighed up the plaintiff's claim that the determination of issues in two separate proceedings may create inconsistent findings between the two Courts, against the reality that the findings of fact made in whichever proceedings are determined first may be able to be used by way of estoppel in the later proceedings. As such, the risk of factual inconsistencies in determinations of fact from each Court is likely to be significantly reduced. This risk was a substantial factor that the plaintiff referred to in submitting that it is in the interests of justice to transfer the proceedings.
However, there are other features which persuade me that it is not "more appropriate" for the personal injury proceedings to be transferred.
There will be a significant delay for the hearing of the personal injury proceedings if they are transferred to the FCFCA. The proceedings are likely to be brought on and heard much more quickly if they remain in the District Court, than if they are transferred to the FCFCA.
In the circumstances of this matter, there is likely to be a real question about the availability of a limitation defence in the personal injury proceedings. That is because the marriage has extended over 17 years. If the conduct giving rise to the tort claim occurred earlier than 3 years before the proceedings commenced then, unless an extension of the limitation period is applied for and granted, any conduct falling outside the limitation period would not be part of the personal injury proceedings. However, that conduct may well be part of the evidence relied upon for the Kennon adjustment. Such a potentially significant difference in the relevant integers points in favour of proceedings being heard separately.
I note the remarks of Fogarty and Lindenmaye JJ in Kennon at p 10 about the potential procedural and evidentiary difficulties for the FCFCA should the personal injury proceedings be transferred to the FCFCA. Their Honours note that whilst all such difficulties are capable of resolution, any such resolution "… may carry with it other disadvantages".
I further note the undesirability of detailed evidence of fault and the parties' behaviour towards each other within a marriage forming part of any hearing seeking alteration of property interests: Kennon at pp 10-11. I note that inclusion of such evidence is likely to considerably increase the cost and expense of the family law proceedings, which may not be recoverable if the usual approach to legal costs in the FCFCA is followed. In Kennon, at p 11, the majority said that there was no legitimate basis for concluding that: "… the Family Court is uniquely suited to the adjudication of domestic violence damages claims. Its daily work brings it into contact in a variety of ways with domestic violence but the same may be said of the… District Courts of the States which have the additional advantage of being more familiar with claims for damages… [Being] so uniquely attuned is [not] a basis for preferring this Court and for offsetting the circumstances that the State courts are the 'natural' tribunals for the adjudication of common law claims."
As earlier indicated, it cannot be said that the FCFCA is the more appropriate court to hear the personal injury proceedings. Nor can it be said that it is in the interests of justice to make a cross-vesting order.
In my view, it is more appropriate for the proceedings to be proceed separately, with the personal injury proceedings remaining to be heard in the District Court. Accordingly, I will dismiss the plaintiff's Summons.

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Cases Cited (29)