Perugini v Perugini

Background

1. The background to the matter was set out in affidavits by the plaintiff (sworn on 8 August 2023) and the plaintiff's solicitor, Mr David Sutherland (affirmed on 12 September 2023) which were read without objection. The Court was also assisted by the written submissions of Mr Bryce Douglas-Baker, who appeared for the plaintiff.
2. Mr and Ms Perugini were married in 1976 and separated on 5 January 2015. They have not finalised a divorce or entered into a binding financial agreement under Pt VIIIA of the Family Law Act 1975 (Cth). The second defendant was registered on 4 May 2000 and, through it, the plaintiff and first defendant jointly carried on a construction business.
3. By a statement of claim filed in the District Court of New South Wales on 21 April 2021, the first defendant commenced proceedings against the second defendant for the recovery of a debt (the District Court proceedings). He claimed a total of $531,355 pursuant to an alleged contractor agreement and an invoice subsequently issued on 4 April 2023. Initially, the plaintiff was not a party to the District Court proceedings and the second defendant was unrepresented. Through a letter from his solicitor dated 17 May 2023, the first defendant refused the plaintiff's request to have the second defendant represented. The plaintiff was joined as a party to the District Court proceedings by orders of the Judicial Registrar on 14 July 2023.
4. On 2 June 2023, the plaintiff filed an initiating application in the FCFCOA seeking financial (property) orders and, as part of that process, the determination of the first defendant's claim against the second defendant and the winding up of the company. A court-ordered mediation between the plaintiff and first defendant took place on 18 August 2023, during which the parties agreed to seek to have the District Court proceedings removed to this Court and transferred to the FCFCOA. The parties undertook to give effect to that agreement by way of consent orders issued by the FCFCOA on 24 August 2023.
5. The parties obtained consent orders from the District Court on 23 August 2023, in which they agreed to do all things reasonably necessary to bring about a transfer of the District Court proceedings to this Court, and from this Court to the FCFCOA.

The cross-vesting legislation

1. Section 8 of the Act relevantly provides: "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) a tribunal established by or under an Act, and (b) it appears to the Supreme Court that - (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court, the Federal Circuit and Family Court of Australia or the Supreme Court of another State or of a Territory and, if an order is made under this subsection in relation to the relevant proceeding, there would be grounds on which that other proceeding could be transferred to the Supreme Court, 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. As observed by Davies J in Amaca Pty Ltd v Mortimer [2023] NSWSC 117 at [4], the test for removing proceedings from another court in New South Wales into this Court is not a particularly demanding one: "The test for removing proceedings from another court in this State into this Court is not a stringent one by any means. s 8(1)(b)(ii) simply provides that if it appears to this Court that an order should be made so that consideration can be given to whether the relevant proceedings should be transferred to another court, then this Court may make an order under s 8 removing the proceedings into this Court."
3. The relevant test for the transfer of proceedings from this Court to the FCFCOA is provided by s 5(1) of the Act, which provides as follows: "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 - … (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, … 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."
4. In Comino v Kremetis [2023] NSWSC 32 at [70], Chen J summarised the well-established authorities considering the s 5(1)(b)(ii)(C) "residual provision", namely, whether it is in "the interests of justice" to transfer proceedings from this Court: "(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]."

Consideration and determination

1. The terms of s 8(1)(b) of the Act contemplate that a transfer of proceedings to this Court may be made so as to facilitate a transfer from this Court to the FCFCOA. In my view, the evidence and the submissions made by the plaintiff warrant consideration of a transfer from this Court to the FCFCOA. I am accordingly of the view that the proceedings should be transferred from the District Court to this Court.
2. I am satisfied that it is in the interests of justice for the proceedings to be transferred from this Court to the FCFCOA. It is clearly the more appropriate jurisdiction, given the close nexus of the second defendant to the property interests of the plaintiff and first defendant that arise from their employment during the course of their marriage.
3. It is also appropriate, for the same reasons, that costs of the cross-vesting application should be costs in the cause.

Orders

1. I make the following orders: (1) Order that pursuant to s 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), proceedings 2023/00128851 commenced in the District Court of New South Wales be transferred to this Court. (2) Order that pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), these proceedings be transferred to the Federal Circuit and Family Court of Australia. (3) Costs of the proceedings to date and of this application to be costs in the cause.

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