B v T [2007] QSC 55 [2008] 1 Qd R 33

SUPREME COURT OF QUEENSLAND CITATION: B v T [2007] QSC 055 PARTIES: B (respondent/plaintiff) v T (applicant/defendant) FILE NO/S: S 5118/03 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland Brisbane DELIVERED ON: 15 March 2007 DELIVERED AT: Brisbane HEARING DATE: 2 March 2007 JUDGE: Lyons J ORDER: Application dismissed CATCHWORDS: FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – RELATIONSHIP – where the plaintiff pleads that the defendant and the plaintiff lived together in a de facto relationship in Queensland between 1997 and 1998 – where the de facto relationship between the plaintiff and the defendant ended in Victoria in 2001 - where there is an application for an adjustment of the parties’ property interests under Part 19 of the Property Law Act 1974 (Qld) – where the parties resided in Queensland prior to the commencement of Part 19 of the Property Law Act 1974 (Qld) - whether the plaintiff and the defendant were in a de facto relationship to which Part 19 applies Acts Interpretation Act 1954, 14B Property Law Act 1974, Part 19, s 57, s 257, s 282(1) C v B [2006] Queensland Supreme Court 195 (applied) Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 (considered) Kumagai Gumi Co Ltd v FCT (1999) 161 ALR 699 (applied) COUNSEL: T.D North SC and J.M Harper for the applicant. T.P Sullivan for the respondent. SOLICITORS: K.L King & Associates for the applicant. Simonidis Shoebridge Lawyers for the respondent. -- 1 of 7 -- 2 LYONS J: Application to strike out the plaintiff’s claim [1] On 11 June 2003 the plaintiff, the respondent in these proceedings, filed a claim for an order that pursuant to Part 19 of the Property Law Act 1974 (“the Act”) that the defendant, the applicant in these proceedings, transfer all his right, title and interest in his property situated at Twigg Street, Indooroopilly, to the plaintiff or such other orders as may facilitate a just and equitable property distribution. The defendant filed a Notice of Intention to Defend and a Counterclaim on 27 August 2003. The matter then proceeded in accordance with Practice Direction 33 of 1999 and there was a Consent Order on 16 November 2004 in relation to the valuation of the property, the delivery of Lists of Documents and the Statement of Compliance with Practice Direction 33 of 1999. The defendant filed a Statement of Financial Circumstances in 2005 and both the plaintiff and the defendant filed Notices of Change of Solicitors during 2005 and 2006. On 26 October 2006 pursuant to a Case Flow review there was an order appointing single court experts to value real estate in Queensland and New South Wales as well as chattels and artwork. Pursuant to that order the parties were also required to file any affidavit material upon which they intended to rely as well as updated Statements of Financial Circumstances by 7 December 2006. The parties were also directed to file an Executed Request for a Trial Date by 9 January 2007. [2] On 22 November 2006 the defendant, filed an application that that the plaintiff’s Statement of Claim be struck out. The applicant (defendant) submits that the facts as pleaded by the plaintiff (respondent) do not disclose the basis for the operation of Part 19 of the Act as there was not a relationship involving co-habitation in Queensland at any time after the commencement of Part 19. On 11 December 2006 the plaintiff filed an application for leave to amend the Claim and the Amended Statement of Claim. Factual background [3] It is clear from the affidavit material that the parties commenced co-habitation in Queensland in 1997 and that they separated in Melbourne on or about May or June 2001. The parties resided at St Lucia in Queensland for approximately 15 months between September 1997 and December 1998. The defendant was employed in Sydney in New South Wales from August 1998 until April 1999, which was approximately five months. For a period of 23 months, which was the major part of their relationship, the parties lived in Victoria. This period was from April 1999 to May/June 2001. The affidavit material also discloses that since the break-up of the relationship the defendant resided for periods in Sydney, Melbourne and Perth and is currently resident in Brisbane. The plaintiff’s claim relates to property situated at Indooroopilly in Brisbane, Queensland. [4] The amendments to the Queensland Property Law Act 1974 by Part 19 came into force on 21 December 1999. Section 255 sets out the main purposes of the Part and states that one of its purposes is to facilitate the resolution of financial matters at the end of a de facto relationship. It is essentially accepted by both parties that there was a de facto relationship and that it existed for the requisite two year period -- 2 of 7 -- 3 required by the Act. It is also clear from the facts that the period of Queensland residency occurred entirely prior to the commencement of Part 19 of the Act. As the relationship existed from September 1997 until June 2001 the entire relationship of some three and three-quarter years straddled the commencement date. [5] Section 282(1) states: “The purpose of this subdivision is to ensure a just and equitable property distribution at the end of a de facto relationship.” Accordingly the right to a property adjustment order accrues to de facto spouses at the end of a de facto relationship. There is clearly no dispute that there was a de facto relationship between the parties. What the defendant contends in this case is that the de facto relationship was not a de facto relationship to which the Act applies because whilst the parties had resided in Queensland as de facto spouses they did not reside in Queensland in a de facto relationship after the commencement of Part 19 and therefore the Act does not apply to them. [6] Section 257 provides as follows: “257 Application of pt 19 (1) This part applies to all de facto relationships other than relationships that ended before the commencement of this section. (2) It does not matter whether a de facto relationship started before or after the commencement of this section.” [7] The applicant submits that the common law principles of statutory construction mean that there is a presumption that legislation does not have extraterritorial effect and s 35(1)(b) of the Acts Interpretation Act 1954 operates to the same effect. The defendant submits therefore that a reference to a de facto relationship only applies to a de facto relationship ‘in and of Queensland’. “35 References to Queensland to be implied (1) In an Act— a) a reference to an officer, office or entity is a reference to such an officer, office or entity in and for Queensland; and b) a reference to a locality, jurisdiction or other thing is a reference to such a locality, jurisdiction or other thing in and of Queensland.” [8] In particular the applicant relies on a decision in C v B1 where P McMurdo J stated as follows: “[22] In my view the implied territorial limitation is effectively that accepted in Baker v Johnston. The jurisdiction depends upon there having been a de facto relationship. Such a relationship is defined by a reference to a cohabitation. This 1 [2006] QSC 195. -- 3 of 7 -- 4 essential element of cohabitation enables in every case an assessment to be made of the place or places in which the parties have been in a de facto relationship. The place of the relationship is where the partners live together, which involves the notion of residence. So a temporary visit together to Queensland would not involve them living together, i.e. residing, in this State. And just as a person can have more than one place of residence so there can be a de facto relationship which exists at one time in several places. [23] I would not accept that there is jurisdiction only where the relationship has ended in Queensland. If for example, parties have lived together as de facto partners in Queensland, and moved to New South Wales before ending their relationship, in my view Part 19 would still apply. The policy of Part 19 is that it is the occurrence of a de facto relationship which should have financial consequences. It represents the Parliament’s view that the participation in such a relationship can involve expectations or assumptions about entitlements to property which cannot fairly be met in every case by the general law. That policy underlying Part 19 is not irrelevant for the fact that a relationship which had existed in Queensland ultimately ended after the parties had moved somewhere else.” [9] Accordingly the applicant, in arguing that the claim be struck out, asserts that by reason of s 257, Part 19 only operates prospectively by affecting the rights and obligations between the parties to de facto relationships where those relationships existed at the date of commencement, or have come into existence after that date. The applicant submits that the jurisdiction does not simply depend on there having been a de facto relationship, but rather upon there having been a de facto relationship in Queensland on or after 21 December 1999. [10] The applicant submits that there was no such relationship in the present case because the relationship did not exist in Queensland on or after the commencement date. [11] It is clear that as P McMurdo J indicated in the decision of C v B “there is no express provision as to the territorial operation of Part 19”.2 It is not expressly confined to de facto relationships in which the parties had resided in Queensland or had begun or ended their relationship in Queensland. Nor is it expressly provided that it applies according to whether one or both of the former partners is a Queensland resident when a proceeding is commenced. [12] The terms “property” and “financial resources” are also used in Part 19 without any express territorial limitations such as property within Queensland. Nor is the occurrence of some relevant contribution, including a financial contribution, made expressly relevant or irrelevant according to its connection with Queensland. His 2 [2006] QSC 195 at [14]. -- 4 of 7 -- 5 Honour held however that some territorial limitation upon the operation of Part 19 must be implied. [13] Pearce and Geddes in their treatise on Statutory Interpretation in Australia3 refer to the decision in Jumbunna Coal Mine NL v Victorian Coal Miners Association:4 “In the interpretation of general words in a Statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most Statutes, if their general words were taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits.” [14] The authors however went on to state that this principle was based on the idea of comity of nations and that the legislature of one state is presumed not to deal with persons or matters the jurisdiction over which properly belongs to some other sovereign state but continued:5 “However this principle carries less weight when considering the intended effect of the legislation of one Australian state in its operation in relation to another state. The concept of a federal system, the homogeneity of the population and the commonality of problems needing a common and cooperative solution point to a presumption being more readily displaced.” [15] In Kumagai Gumi Co Ltd v FCT6 it was held that if the application of the presumption would defeat the purpose of the legislation, it can be assumed that the intention was to override the presumption:7 “[42] … More precisely, it may be said that legislation, be it of the United Kingdom Parliament, the Commonwealth Parliament or a State, where expressed in general words, will be construed so as to confine those general words to operate in accordance with the generally accepted principles of nations, and not so as to operate extraterritorially. … [43] That there is such a rule of interpretation may for present purposes be accepted. The application of it must however, depend upon the context of the legislation, the legislative purpose and the construction of the statute as a whole.” [16] It is important therefore to look at the legislative purpose of Part 19 and the context of the legislation. As P McMurdo J stated in C v B: 8 3 Dennis Charles Pearce and Robert Stanley Geddes, Statutory Interpretation in Australia, 5th Edition Butterworths, Australia (2001) at p133. 4 (1908) 6 CLR 309 at 363. 5 Dennis Charles Pearce and Robert Stanley Geddes, Statutory Interpretation in Australia, 5th Edition Butterworths, Australia (2001) at p133. 6 (1999) 161 ALR 699. 7 (1999) 161 ALR 699 at 707. 8 [2006] QSC 195 at [21]. -- 5 of 7 -- 6 “Part 19 substantially enacts the recommendations of the Queensland Law Reform Commission in its report entitled De facto Relationships.9 The Commission discussed whether its proposed legislation should express some required nexus with Queensland. It referred to (what is now called) the Property (Relationships) Act 1984 (NSW), which has requirements of residency in New South Wales on the day of the application and for a substantial period of the de facto relationship, or alternatively the fact of substantial contributions made in New South Wales by the applicant. The Commission recommended against any express requirement for some Queensland connection, saying that it could "have the practical result of limiting the jurisdiction otherwise available at common law".” [17] It is clear that pursuant to s 14B of the Acts Interpretation Act 1954 that to the extent that a provision is ambiguous or obscure, extrinsic material, including a report from a Law Reform Commission, can be referred to. In looking then at the QLRC Report and the Draft Legislation in particular the QLRC Report states:10 “Clause 3.1 of the Bill included in the Working Paper of the Commission set out prerequisites for making an order under Part 3, namely, one of both partners having lived in Queensland on the day of the application and one of both partners having lived together in Queensland for at least one year, substantial contributions of the kind referred to in clause 3.8(1) having been made in Queensland by the applicant or a substantial part of the partners’ assets or a substantial asset being situated in Queensland. The discussion of clause 3.1 in the Working Paper included examples which highlight the difficulties in formatting an appropriate clause. A submission received by the Commission on the De Facto Relationships Working Paper suggested that clause 3.1 be deleted. The reasons provided for deleting clause 3.1 were persuasive. Firstly, it was suggested that inserting this clause would not fully utilise the legislative power of Queensland. Secondly, it was suggested that the failure to utilise that power fully could, in particular cases, cause injustice. That is, clause 3.1 may have the practical result of limiting the jurisdiction otherwise available at common law. For example, itinerant workers who move from State to State may satisfy the common law test, but not satisfy the provisions of clause 3.1. The third argument was that the need to prove those matters listed in clause 3.1 added unnecessary threshold issues to any proceedings commenced under the proposed legislation. 9 Queensland Law Reform Commission, De Facto Relationships, Report No 44, (1993). 10 Queensland Law Reform Commission, De Facto Relationships, Report No 44, (1993), p37. -- 6 of 7 -- 7 If the respondent objects to the court’s jurisdiction then the court must be satisfied that is [sic] has jurisdiction. “In deciding whether to proceed with a matter or to stay it, the court is less likely to proceed where there is only a slight connection with the forum than where there is a substantial connection with it.”” [18] Accordingly when one looks at the precise words of the legislation it is apparent that s 257(1) expressly states that the part applies to “all de facto relationships” except de facto relationships which ended prior to the section coming into force. I consider that the use of the word “all” together with the QLRC Report is a clear indication that that the drafters intended to cover all de facto relationships. It is especially clear from the QLRC Report that it was intended to cover precisely the situation which applies here. That is, where you have highly mobile parties who have had a variety of addresses in a variety of states over a number of years and who in fact own property in a variety of states including Queensland. [19] Whilst there is nothing on the face of Part 19 which expressly requires the parties to have co-habited for any part of their relationship in Queensland P McMurdo J however held in C v B that there is an implied territorial limit in that the parties must have resided together for at least part of their relationship in Queensland. This has occurred in the circumstances of the current case. The parties had a de facto relationship which commenced in Queensland and then they moved interstate. [20] On the facts as pleaded by the plaintiff (respondent) there was a de facto relationship for the required period. Furthermore it was a de facto relationship which had not ended before the commencement date of the Act and which continued until mid 2001. [21] I am not satisfied that there is an additional requirement that a de facto relationship must have existed in Queensland at the time that Part 19 commenced operation. I am satisfied that the legislative purpose was that the provision should have wide operation. [22] Given that the parties commenced their relationship in Queensland, there is property in Queensland and that the parties currently reside in Queensland, I am not satisfied that the defendant has established that on the facts as pleaded the plaintiff has failed to establish that Part 19 applies to the circumstances of this case. [23] I would therefore dismiss the application for the Statement of Claim to be struck out. [24] Turning then to the respondent’s (plaintiff’s) application that she have leave to amend the Statement of Claim to include an additional paragraph in the relief to include “An Order pursuant to Part IX of the Property Law Act (1958) (Victoria)”. The respondent has indicated that such leave would only be required in circumstances where the Statement of Claim was in fact struck out. In the circumstances therefore it is not necessary to determine this application. [25] I will hear from the parties in relation to costs. -- 7 of 7 --