Bentley v Marsters [2005] NSWSC 346

New South Wales Supreme Court

CITATION : Bentley v Marsters [2005] NSWSC 346

HEARING DATE(S) : 14 April 2005

JUDGMENT DATE : 18 April 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Master Malpass at 1

DECISION : Leave to appeal, if necessary, granted; the appeal is allowed; the matter and any question as to costs are remitted to the Local Court.

CATCHWORDS : Prerequisites for the making of an order - deeming provision - error in the application of that provision - residency and party illegally within the State.

Local Courts (Civil Claims) Act 1970, s69 LEGISLATION CITED : Property (Relationships) Act 1984, s15

Shannon Valda Bentley (Plaintiff) PARTIES : Julius Marsters (Defendant)

FILE NUMBER(S) : SC 14231/04

Ms R Winfield (Plaintiff) COUNSEL : Ms N Nelson (Defendant)

Legal Aid Coffs Harbour (Plaintiff) SOLICITORS : Filewood Carty (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : FL057/040173

LOWER COURT JUDICIAL OFFICER : Pearce LCM

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

18 April 2005

14231 of 2004 Shannon Valda Bentley v Julius Marsters

JUDGMENT 1 Master: This is an appeal from a decision of Pearce LCM. The decision was handed down on 24 November 2004. 2 On 8 March 2005, the parties were given a special fixture for the hearing of the appeal. The appeal was to take place on 14 April 2005. 3 Shortly prior to the commencement of the hearing, the solicitor for the defendant filed a notice of ceasing to act. The notice is dated 12 April 2005. Counsel for the defendant appeared in Court on the date fixed for hearing intending to make an application that she be excused from further participation in the appeal. Counsel for the plaintiff then made it clear that an application for adjournment would be vigorously resisted. 4 There has not been compliance with the Supreme Court Rules 1970 (Pt 66 r 7(2)). In the present case, the filing of the notice requires leave of the Court. 5 The defendant has been in custody in New Zealand since June 2004. The Court has been told that attempts to obtain instructions from him have been unsuccessful (he has given unresponsive replies to requests for instructions during the last seven months). The Court has been told that he was aware of the hearing date, but may be unaware of what is now being done by his legal advisors. The decision to cease acting was recently made. 6 To the extent that an application for leave was pressed, it was not granted. 7 In this context, the Court made enquiry of the parties as to the nature of the appeal and the proceedings before the Local Court. It became apparent that opposition to the appeal would have been pointless. The defendant's case was hopeless. In the circumstances, an adjournment would have caused further costs to be thrown away and would not have assisted the defendant. I was also informed that the plaintiff would not be seeking an order for the costs of the appeal, if the appeal proceeded on that day. 8 In the circumstances, it was decided that justice was best served by allowing the appeal to proceed in circumstances where counsel for the defendant would continue to appear as amicus curiae and do what she could to protect the interests of the defendant. 9 On 27 September 2004, the defendant made application in the Local Court for relief pursuant to the Property (Relationships) Act 1984 (the Act). 10 Section 15 of the Act (which appears in Part 3 – Proceedings for financial adjustment) reads as follows:- 15 Prerequisites for making of order – residence within State etc (1) A court shall not make an order under this Part unless it is satisfied: (a) that the parties to the application were or either of them was resident within New South Wales on the day on which the application was made, and (b) that: (i) both parties were resident within New South Wales for a substantial period of their domestic relationship, or (ii) substantial contributions of the kind referred to in section 20 (1) (a) or (b) have been made in New South Wales by the applicant. (2) For the purposes of subsection (1) (b) (i), the parties to an application shall be taken to have been resident within New South Wales for a substantial period of their domestic relationship if they have lived together in the State for a period equivalent to at least one-third of the duration of their relationship. 11 The Magistrate in effect decided that the defendant had satisfied the prerequisites set forth in subsection (1)(b)(i) (he found that the parties were living in New South Wales together in a domestic relationship for a period of at least one third of the 22 months that the relationship existed). The plaintiff contends that he erred in making that jurisdictional decision. She seeks, inter alia, an order that the Local Court proceedings be dismissed. 12 The status of the decision of the Magistrate was neither raised nor argued. On one view, it may be regarded as an interlocutory judgment. 13 Section 15 prohibits the making of an order under Part 3, unless the Court is satisfied as to the matters set forth in subsection (1). 14 A satisfaction of the prerequisites prescribed by s15 requires the Court to make findings on a number of matters. 15 Firstly, it has to be satisfied that the parties to the application were, or either of them was, resident within New South Wales on the day on which the application was made. 16 Secondly, it has to be satisfied that both parties were resident within New South Wales for a substantial period of their domestic relationship. 17 Subsection (2) may be described as a deeming provision in respect of subsection (1)(b)(i). It provides that the parties to an application shall be taken to have been resident within New South Wales for a substantial period of the domestic relationship if they have lived together in the State for a period equivalent to at least one third of the duration of their relationship. 18 Both the plaintiff and the defendant are New Zealanders. The defendant was living in New Zealand until May 2000. A domestic relationship existed between him and the plaintiff during the period July 1998 and May 2000. This was a matter of agreement between the parties and so found by the Magistrate. In May 2000, the defendant fled New Zealand for the purposes of escaping arrest. He came to Australia. He lived in New South Wales at various places during the period between May 2000 and June 2004, (when he was arrested and extradited back to New Zealand). The plaintiff came to Australia in July 2000. It is understood that the defendant's trial is either about to take place or has commenced. 19 During the period that he was in New South Wales, he was using an alias. He had entered Australia using a false passport. Both his entry and stay in Australia were illegal. 20 It was found by the Magistrate that during such period, his domestic relationship with the plaintiff continued for a period of about five months (ending December 2000). 21 The judgment contains the following:- So the inference or the overwhelming inference is, is that there was a continuation of this relationship. I cannot say with certainty that I am satisfied that it is more than a month, in other words, it tips this one third rule on the side of the applicant and so I am satisfied, on all the evidence, having regard to the inferences that I have made, and despite what was said by the respondent's separate witnesses, that the parties were living in New South Wales together in a domestic relationship for a period of at least one third of the 22 months and so I find that the applicant has overcome that threshold of tests in relation to the residency. 22 It is unclear to me what was intended by, inter alia, the words "that it is more than a month" and how that "more than a month" came to tipping the one third rule on the side of the defendant. It seems that it may relate to a period subsequent to December 2000. 23 It is unnecessary to pursue this consideration. The appeal can be otherwise disposed of. 24 There is no dispute (nor can there be) that the Magistrate erred. (It is a pity that it was not picked up by the legal representatives at the time and perhaps it may have then been rectified.) 25 The deeming provision has application where the parties have lived together in New South Wales for a period equivalent to at least one third of the duration of their relationship. 26 It is unnecessary to explore how the Magistrate came to his "at least one third" view. It is clearly wrong. 27 On his own findings, the duration of the domestic relationship had to be at least 29 months. On his own findings, the period that they had lived together in New South Wales was not at least one third of that duration. It fell well short. His findings suggest that it was five or maybe six months. In any event, he appears to have overlooked taking into account the duration of the relationship in New South Wales in calculating the duration of the relationship (which was a total of the two periods). 28 The effect of the error is to disentitle the defendant from relying on the deeming provision. This means that he would need to satisfy subsection (1)(b)(i) and (ii) to meet the prerequisites. On the evidence, it appears that he would fail to satisfy both. 29 The question of (1)(b)(ii) was not dealt with by the Magistrate, otherwise than by observation ("There is just nothing there"). Until that is also met, the prerequisites would not be satisfied. 30 Whilst what I have said about the deeming provision suffices to dispose of the appeal, it may be helpful to make observations on another matter. 31 It is the question of residency and whether s15 could have application to a person such as the defendant. 32 The Act does not provide any definition of a "resident". It is an Act which has as an object the making of provision with respect to the rights and obligations of persons in certain domestic relationships. The object of the provision would be to benefit persons resident in New South Wales. It would not seem to have been the intention of the legislature to make provision for a person who was illegally within the State. 33 I take this matter no further, as it was not fully argued before me. 34 As the defendant appears to be unable to satisfy the prerequisites for the making of an order, his application in the Local Court seems doomed to failure. The plaintiff would seem to be entitled to have the proceedings in the Local Court dismissed. I am not persuaded that s69 of the Local Courts (Civil Claims) Act 1970 empowers this Court to make the dismissal order but in any event it seems to me that it has to go back to the Local Court to deal finally with the matter (including any questions that have to be dealt with concerning (1)(b)(i) and (ii)). Accordingly, the matter has to be remitted to the Local Court and determined according to law. 35 In the course of the conduct of this appeal, no question of the need for leave was either raised or argued. In case it should be necessary to do so, leave is granted for the bringing of this appeal. 36 The appeal is allowed. No order is made as to the costs of the appeal. Any question of costs relating to the proceedings in the Local Court is reserved. The matter and any such costs question are remitted to that Court for determination. **********