New South Wales Supreme Court CITATION : Samootin v Shea [2001] NSWSC 305 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1973/01 HEARING DATE(S) : 23 April 2001 JUDGMENT DATE : 23 April 2001 Alexandra Samootin (P) PARTIES : Christopher George Shea (D1) Peter John Deans (D2) Loan Design Pty Ltd (D3) S R Deans Pty Ltd (D4) JUDGMENT OF : Hamilton J P in person COUNSEL : D1 in person B T G Muir, Solicitor (D2, 3 & 4) P in person SOLICITORS : D1 in person Brian Muir & Company (D2, 3 & 4) CATCHWORDS : PROCEDURE [24] - Courts - Concurrent jurisdiction of different courts - Transfer of proceedings under cross-vesting legislation - In general - Concurrent proceedings in Supreme Court and Family Court - Problems created by partial invalidity of cross-vesting legislation. LEGISLATION CITED : Family Law Act 1975 (Cth) s 79 Jurisdiction of Courts (Cross-Vesting) Act 1987 CASES CITED : Re Wakim; Ex parte McNally (1999) 198 CLR 511 DECISION : Directions given for continuation of proceedings in Supreme Court pending decision of Family Court whether to proceed. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J MONDAY, 23 APRIL 2001 1973/01 ALEXANDRA SAMOOTIN v CHRISTOPHER GEORGE SHEA & 3 ORS JUDGMENT 1 HIS HONOUR: The applications before me are illustrative of the difficulties that arise from the same subject matter being vested in two courts in the same country. The plaintiff in these proceedings has brought proceedings in this Court against her ex-husband, Mr Shea, and against three persons or entities associated with Mr Shea who or which became involved in dealings with property in which the plaintiff and Mr Shea have or claim to have interests. Similar proceedings are at the same time pending in the Family Court of Australia. When I say the proceedings are similar proceedings, those are proceedings for a settlement of property under s 79 of the Family Law Act 1975 (Cth) and for orders relating to the property with which the other parties I have mentioned have had dealings. 2 The arguments concerning jurisdiction arise from the unusual circumstance that the plaintiff and Mr Shea were divorced in 1993, but continued to live in the same premises and, according to the plaintiff's claim, had contractual dealings concerning property after that time, when they were no longer man and wife. It is the plaintiff's claim that those dealings are dealings which are justiciable only in this Court as a court of general jurisdiction and not in the Family Court of Australia. The defendants, however, contend before me that Rose J has said in interlocutory proceedings in the Family Court that the Family Court does have jurisdiction to deal with all the matters which are in issue, so that, if this be correct, all issues joined or desired to be joined between all parties may be determined in the Family Court proceedings. One significant difference between the two sets of proceedings is that the proceedings in this Court are only just commenced and are certainly not ready for trial. On the other hand, the proceedings in the Family Court are fixed for a trial to commence before Rose J on 30 April 2001. If all the issues could be dealt with in the Family Court proceedings, that would provide a much earlier adjudication than could, as a matter of practicality, be provided in this Court. I should add that Ms Samootin says that she has "withdrawn" her proceedings against the second, third and fourth defendants (as opposed to Mr Shea) in the Family Court and "dismissed" them from the proceedings, but it is clear on evidence given before me, both by her and by Mr Muir, the second, third and fourth defendant's solicitor, that no order dismissing those parties from the Family Court proceedings has been made, nor have the Family Court proceedings against those parties in any other way been terminated to date. 3 The avenue which would once have been available for this Court to transfer these proceedings to the Family Court pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 has been closed by the decision of the High Court of Australia in Re Wakim; Ex parte McNally (1999) 198 CLR 511. It remains open, of course, for the Family Court of Australia to transfer the proceedings before it to this Court under that Act if it is clear that it is not or there is any substantial doubt as to whether it is vested with jurisdiction to deal with all of the issues between the parties. Without, either at this point or any other point, in any way expressing any view as to what the Family Court ought do in relation to proceedings vested in it, I am certainly of the view that it is important to the orderly conduct of public justice that there be only one set of proceedings going forward at any one time between the same parties as to the same or substantially overlapping subject matters. 4 The course that I propose to adopt in this somewhat contorted situation is as follows. The final hearing of these proceedings is such as would not in the ordinary course be dealt with in the Duty List of this Division of this Court, nor could the matter be dealt with in the Duty List today or this week because the procedural steps necessary to bring it to readiness have not been and could not be taken. The next step which would ordinarily be taken by a Duty Judge faced with this matter is to grant leave to the plaintiff to file a motion for an expedited hearing of these proceedings returnable before an Expedition Judge so that an Expedition Judge may consider and pass upon that application. I propose to indicate this Court's preparedness to accept and exercise the jurisdiction which it undoubtedly has in the matters that have been raised by making an order to this effect as the next appropriate step in the proceedings. That this step has been taken will be apparent to the learned Judge of the Family Court when this matter returns there tomorrow. That Judge, as I have said, with respect, will adopt the course that he deems fit in relation to the matter. 5 Among the possible courses are a determination that all matters in issue between the parties, as to which much greater material is available to his Honour than has been available to me today, are properly justiciable in the Family Court, in which case, he may well determine that the trial should proceed in the Family Court next week. That is subject, of course, to an application which I understand Ms Samootin has about her readiness to proceed owing to some vexed procedural history of the matter. The other courses that his Honour may consider are an adjournment of the Family Court proceedings until after the determination of proceedings in this Court, or a transfer, which is still possible, of the Family Court proceedings to this Court to be determined together with these proceedings. Whether this Court, after a transfer, would try all the issues or would perhaps distill any "State" issues - that is, issues justiciable only by this Court - and determine those, returning the balance of the matters to the Family Court at a later time, or whether this Court would, in due course, determine all of the matters would be something for consideration at a later date. May I repeat that, in saying any of the things that I have said, I do not in any way seek to constrain or indeed influence his Honour the Judge of the Family Court in the exercise of any discretion which his Honour comes to exercise. 6 The only order, it seems to me, that I need make so that the purpose of my reasons for judgment may be carried out is that I grant to the plaintiff leave to file a notice of motion for expedition of these proceedings returnable before the Expedition Judge on Friday 27 April 2001. The costs of today's proceedings are reserved. …o0o… Last Modified: 04/27/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.