HOFF -v- SZENCZY & ANOR [2008] WADC 89 (3 July 2008)

Last Updated: 4 July 2008

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH

CITATION : HOFF -v- SZENCZY & ANOR [2008] WADC 89

CORAM : DEPUTY REGISTRAR HEWITT

HEARD : 18 JUNE 2008

DELIVERED : 3 JULY 2008

FILE NO/S : CIV 1814 of 2007

BETWEEN : PHILIP HOFF

Plaintiff

AND

CORNELIA IRENE SZENCZY

First Defendant

DR CONNY SZENCZY PTY LTD

Second Defendant

Catchwords:
Practice and procedure - Western Australia - Proceedings in Family Court between parties - Application for stay of District Court action

Legislation:
Family Court Act 1997

Result:
Stay granted

Representation:

Counsel:

Plaintiff : Mr J Eastoe

First Defendant : Ms S Vincent

Second Defendant : Ms S Vincent

Solicitors:

Plaintiff : Jonathan Eastoe

First Defendant : Siobhan M Vincent & Associates

Second Defendant : Siobhan M Vincent & Associates

Case(s) referred to in judgment(s):

1 DEPUTY REGISTRAR HEWITT: In this action the plaintiff is the former de facto partner of the first defendant and the second defendant a company under her control. The action concerns an attempt by the plaintiff to enforce the terms of promissory notes executed by the first defendant in her own right and also as an officer bearer of the second defendant. The application which brings the matter before me for determination was filed by the defendant initially seeking that this matter be cross vested to the Family Court of Western Australia but subsequently amended to seek a stay. The amendment was necessitated by the fact that the District Court of Western Australia does not have any power to vest an action for proceedings within its jurisdiction in any other court. The proper process is to have the action in the District Court remitted to the Supreme Court which does possess the necessary power. There is however a power within this Court to stay a proceeding when thought appropriate.

2 Relevant to the determination of this application is the fact that the defendant has commenced proceedings in the Family Court of Western Australia under the provisions of the Family Court Act 1997 seeking orders which in part impinge upon the relief sought by the plaintiff in these proceedings. Relevantly s 205Z of the Family Court Act confers a power to make orders regarding the property of de facto partners. A de facto partnership may be established on a number of grounds the first being the duration of the relationship for at least 2 years (which is not relevant in the present circumstances since these parties were only in a relationship for approximately 5 months), alternatively that there is a child of the relationship (which again does not apply to these circumstances) and finally that the applicant made substantial contributions to property of the partners or either of them and that failure to make an order would result in serious injustice to the applicant. On that latter point there is clearly a threshold question to be established by the Court in order to vest it with jurisdiction. At this stage it is instructive to examine the structure of the Family Court Act in so far as it is relevant to the present application. I start with s 37(8) of the Act which provides:

"Non federal jurisdiction conferred on the court is exclusive of any other court except as provided under s 39 or where an appeal lies to the Supreme Court."

3 Section 39 refers to the non-federal jurisdiction of courts of summary jurisdiction and is not relevant to this matter. Section 205V is relevant since it excludes the right of a de facto partner who is or was eligible to apply for an order with respect to property under Div 2 to apply to the Supreme Court in its equitable jurisdiction for relief in respect of that property.

4 The latter section is of relevance because there was some mention by the parties of the prospect of the defendant making application for petition or sale to the Supreme Court.

5 Section 205Z has already been discussed and s 205ZG in subsection (4) sets out the various criteria required to be taken into account in dealing with proceedings with respect to property of de facto partners.

6 On my analysis of the materials that I have just canvassed, if the Family Court in the proceedings before it, decides that the criteria referred to in s 205Z exist, then the Family Court has exclusive jurisdiction to determine the dispute between the parties. Whether or not the court will reach such a conclusion remains to be seen but the trial of the matter is listed for September and shortly after that trial the Family Court will deliver its decision in relation to the matter. The affect of that decision will, if it is in favour of the applicant to the Family Court rob this Court of any jurisdiction in relation to the action which has been commenced.

7 It has been argued relying on the decision in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 per Deane J at 247-248 that a stay should not be granted in favour of the defendants unless it is shown that this Court is clearly an inappropriate form and that conclusion should only be reached when it has been demonstrated to the satisfaction of this Court that it is so inappropriate for the determination of the proceedings that their continuation would be oppressive and vexatious.

8 That case concerned the application of the principles of Private International Law in a contest as to whether the appropriate forum for hearing the plaintiff's case was a court in Greece or a court in Australia. The principles expressed in that case do not translate into matters that affect the power of this Court to regulate its own proceedings, using, in appropriate circumstances, a stay.

9 There is ongoing in another jurisdiction an application the outcome of which will determine whether this Court has any jurisdiction to deal with this action. Whilst it is impossible to prognosticate nonetheless the applicant to the Family Court must entertain some prospect of success in the application. The action in this jurisdiction is therefore potentially at least outside the jurisdiction of this Court and within the jurisdiction of the Family Court. The position will not be finally known until the Family Court gives a ruling.

10 The events which give rise to the cause of action took place in December 2005 and January 2006 a delay imposed upon the plaintiff in this proceeding will not have any profound impact given the delays which have already occurred.

11 In my view it is undesirable to have the same subject matter litigated in two courts that is particularly so when only one of those courts can have jurisdiction. Given that there is a proceeding underway which will decide which of the courts is the court with jurisdiction I think it appropriate to stay these proceedings to await the decision which will resolve the issue both for the parties and the Court.

12 For those reasons I am of the view that the action proceeding here should be stayed pending the determination of the proceedings in the Family Court with the proviso that there be liberty to apply to lift the stay in the event that those proceedings are not pursued diligently.