Piatek v Piatek & Siudy [2008] QSC 75

[2] The respondent has commenced two actions in this court. In BS3439/05 the respondent seeks an account of money received by the applicant from the sale of real property which had been held in his name. The pleadings have closed in this matter and disclosure and inspection of documents has commenced. In BS654/07 the respondent seeks declarations that certain property formerly owned by the applicant and which was purchased by another defendant, Magdalena Joanna Siudy, is the subject of a constructive trust in favour of the respondent.

[3] On 27 October 2007 Atkinson J granted a stay of both proceedings until 1 February 2008. That stay expired but neither party took any steps until this matter was the subject of a case flow management hearing.

[4] The applicant now seeks a further short term stay (three months) on the basis that the Polish divorce proceedings are still in train.

[5] In her reasons, Atkinson J said that a critical factor relevant to the decision to be made by this court as to the equitable ownership of the properties in question will be the date to be used to determine the assets of the marriage. At that time the court in Poland had not determined that date. It has done so now. That date is 1 January 2005 and that, I was told, is the date to be used under Polish law as the date for the division of the marital estate.

[6] The applicant has applied in Poland, in an application made on 20 December 2007, for the division of the marital property, including all real property in Poland and chattels and cash wherever situated.

[7] The applicant argues that it is appropriate for a stay to be extended for a further three months to allow the Polish court to determine the overall property division and in accordance with the proper law of the relevant divorce proceedings, namely Poland.

[8] The applicant has brought to the Polish court's attention the money which is the subject of the 2005 action but, in doing so, has said that it is not an asset of the marriage but has submitted the question of whether it is such an asset to the jurisdiction of the Polish court.

[9] The divorce proceedings in Poland were commenced by the respondent before she commenced any proceedings in Australia. Neither party has any real connection with Australia, apart from having taken holidays here and having purchased various pieces of real property. It is not in question that the Polish courts have no power to deal with real property outside Poland. Rather, it is argued that the Polish court can determine all questions of asset division and can make adjustments of property interests in order to take account of real property held by one or other of the parties outside Poland.

[10] It appears that the court in Poland currently hearing the matter relating to the matrimonial property is not a court whose judgments would be recognised in this country. The proceedings in Poland are not before a superior court. The regional court before which the matter is proceeding is not recognised as a superior court for the purposes of the reciprocal enforcement of judgments under the Foreign Judgments Act 1991 (Cth) and the Foreign Judgment Regulations 1992 (Cth).

[11] A court in this country will normally only refuse to entertain proceedings brought before it if it is found that the jurisdiction sought to be exercised was a "clearly inappropriate forum" such that continuing the proceeding here would be "oppressive or vexatious".[1]

The respondent has regularly invoked the jurisdiction of this court and, thus, has a prima facie right to insist upon its exercise and to have her claim heard and determined.[2] It is also appropriate to take into account the stage which has been reached by the competing proceedings. In Henry v Henry[3] the High Court considered a situation where a husband and wife commenced separate divorce proceedings in Monaco and, after the husband's proceedings were struck out in Monaco, he commenced proceedings for the dissolution of the marriage in the Family Court of Australia. The wife applied to have the Australian proceedings stayed on the grounds of lack of domicile and forum non conveniens. It was held by the High Court that the test to determine whether a stay of matrimonial proceedings should be granted is whether the Australian court is a clearly inappropriate forum. In doing so, it was relevant to consider the stage which proceedings had reached in the other forum, and it was appropriate to take into account the general circumstances of the case including the true nature and full extent of the issues involved.

There is no doubt that this court has jurisdiction to deal completely with the proceedings which have been commenced by the plaintiff. The Polish court can, on the arguments advanced to me, take into account, if it wishes, an order made in this court with respect to any further distribution of matrimonial property. It is clear that this court is the more appropriate court to deal with questions of the law of trusts in Queensland or the title to land situated in Queensland. It is a particularly weighty consideration that the second proceeding seeks orders against a person who is not a party to the proceedings in Poland.

While the Polish court has now established the date upon which matrimonial property issues will be decided, there is nothing in the material which would allow any sort of estimate as to how long the proceedings in Poland will take. The applicant seeks a stay for only three months but there is no reason to be confident that the Polish proceedings will have concluded by then.

The Supreme Court cannot, in these circumstances, be regarded as a clearly inappropriate forum. Therefore, I dismiss the application for a stay.

The respondent has asked for an order that the two matters be heard together. That seems to be appropriate. I will hear the parties on further directions and costs.

1. [1] Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 at 564 and 556; Regie Nationale Des Usines Renault SA v Zhang (2002) 210 CLR 490 at 504.
2. [2] Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 at 241.
3. [3] [1996] HCA 51; (1995) 185 CLR 571.