Glavonjic v Glavonjic [2003] ACTSC 14 (28 March 2003)

Last Updated: 7 April 2003

IN THE SUPREME COURT OF THE )

) No. SCA 41 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SVETLANA GLAVONJIC

Appellant

AND: ZORAN GLAVONJIC

Respondent

CORRIGENDUM

Judge: Crispin J

Date: 28 March 2003

Place: Canberra

Amendment to Judgment dated 28 March 2003

On the last page (page 7) of the judgment the appearance of Counsel should read:

Counsel for the appellant: Ms Tonkin

Counsel for the respondent: Mr Thomas

Associate to Justice Crispin

4 April 2003

SVETLANA GLAVONJIC v ZORAN GLAVONJIC [2003] ACTSC 14 (28 March 2003)

COURTS AND TRIBUNALS - maintenance of application for orders under Protection Orders Act 2001 (ACT) after identical orders made in Family Court - whether provisions of Family Law Act 1975 (Cth) cover the field - whether res judicata or principles in Henderson v Henderson (1843) Hare 100 applicable - whether abuse of process.

Protection Orders Act 2001 (ACT)

Family Law Act 1975 (Cth), ss 68 B, 70NP, 112AE, subs 114AB(1)

Australian Capital Territory (Self Government) Act 1988 (Cth), s 28

Constitution, s 109

Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1992) 28 NSWLR 443

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1980-1981) 147 CLR 589

In Re South American & Mexican Company; Ex parte Bank of England [1895] 1 Ch 37

Henderson v Henderson (1843) 3 Hare 100

Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1

In re Koenigsberg; Public Trustee v Koenigsberg (1949) Ch 348

Reichel v McGrath (1889) 14 AC 665

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; [2000] 203 CLR 503

R B O'Hair, The Law of Judicial Process, Aardvark Editions, 2001, Vol 1, Chapter 24

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 41 of 2002

Judge: Crispin J

Supreme Court of the ACT

Date: 28 March 2003

IN THE SUPREME COURT OF THE )

) No. SCA 41 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SVETLANA GLAVONJIC

Appellant

AND: ZORAN GLAVONJIC

Respondent

ORDER

Judge: Crispin J

Date: 28 March 2003

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed.

1. This is an appeal against a decision of Magistrate Somes dismissing an application for a protection order under the Protection Orders Act 2001 (ACT) and discharging an interim order previously made under that Act on the ground that identical orders had been made under s 68B of the Family Law Act 1975 (Cth). His Worship was of the view that sections of this Act authorising the Family Court of Australia to make orders restraining people from assaulting or molesting former partners or children evinces an intention by the Commonwealth legislature to "cover the field" in relation to this area of the law. Hence, he concluded that the Protection Orders Act had no application and the Magistrates Court had no jurisdiction to entertain the proceedings before it.

2. Ms Tonkin, who appeared for the appellant, submitted that his Worship's view that the relevant provisions of the Family Court Act were intended to cover the field in relation to orders of this kind was clearly incompatible with the statutory scheme evident in various sections. For example, subs 114AB(1) provides that:

Sections 68B, 68C, 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections.

3. The sections of the Family Law Act referred to by Ms Tonkin were not drawn to his Worship's attention prior to the making of the orders in question. If they had been, the matter may have been approached differently. However, the question of whether the Family Law Act evinces an intention to cover the field in relation to orders of this kind can plainly be answered only by reference to the terms of the statute and, notwithstanding the respondent's failure to properly address the issue earlier, I am required to consider the effect of the sections to which Ms Tonkin adverted. In my opinion, the provisions contained in these sections are incompatible with any suggested implication of an intention to cover the field. Hence, I accept her submission that the Magistrates Court was not denied jurisdiction on this ground.

4. Mr Thomas, who appeared for the respondent, sought to support the decision on other grounds. He began by pointing out that, even if the Family Law Act does not evince an intention to cover the field, it does prevail over the Protection Orders Act by reason of s 28 of the Australian Capital Territory (Self Government) Act 1988 (Cth) and that the Territory enactment is void to the extent of any inconsistency. He submitted that it was unnecessary for there to be a conflict in the actual terms of the Commonwealth and Territory provisions. It was sufficient to demonstrate that the effect of orders made under the respective provisions would give rise to a conflict of the kind to which s 28 was directed. He argued that in the present case, the making of identical orders would give rise to such a conflict if only because the enforcement regimes were quite different.

5. In answer to this contention Ms Tonkin pointed to the provisions of s 70NP of the Family Law Act, which provide that, where the act or omission that infringed a restraining order also involved an offence, the Family Court must dismiss enforcement proceedings or adjourn them pending the resolution of any prosecution for breach of protection orders and that a person must not be punished twice for the same act or omission. Breach of a protection order made under the Protection Orders Act is an offence and these provisions would apply to a prosecution for such an offence. Hence, Ms Tonkin submitted that these provisions were clearly sufficient to prevent any such inconsistency from arising.

6. I accept this submission. It is true that in Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1992) 28 NSWLR 443 at 462 Mahony J, in considering the comparable provision in s 109 of the Constitution, acknowledged the possibility that the section would operate when there had been "such an exercise of a power granted by State legislation as creates an inconsistency with a provision of a Federal law or, it may be, the exercise of a power under a Federal law". However, even if s 28 were to be interpreted as extending to inconsistencies in the exercise of the enforcement procedures laid down by the Commonwealth and Territory enactments, the section would appear to have no application to the present case because the sections to which Ms Tonkin referred effectively prevent any such conflict.

7. In the alternative, Mr Thomas argued that the proceedings before his Worship could not have been maintained because the principle of res judicata. He maintained that the appellant's cause of action with the consent judgment in the Family Court, vide Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1980-1981) 147 CLR 589 at 597.

8. I am unable to accept this argument. The mere fact that orders have been made by consent does not prevent the application of res judicata: see, for example, the observations of Lord Herschell LC In Re South American & Mexican Company; Ex parte Bank of England [1895] 1 Ch 37 at 50. In my opinion, however, neither res judicata nor the principle in Henderson v Henderson (1843) 3 Hare 100 could arise in relation to applications for injunctive relief under different provisions involving different statutory criteria. Nor is this a case, as in Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1, in which a party was seeking an order that was "on the face of it and in form" in direct conflict with an earlier order (per Fullagar J at 15, citing Somervell LJ in In re Koenigsberg; Public Trustee v Koenigsberg (1949) Ch 348 at 360).

9. However, these rules reflect a more broad public policy expressed in the maxim interest republicae ut sit finis litium, which refers to fact that there is a public interest in the finality of litigation. For a helpful discussion of this concept and different rules that reflect it see R. B. O'Hair, The Law of Judicial Process, Aardvark Editions, 2001, Vol 1, Chapter 24. It has long been recognised that a party is not entitled to re-litigate essentially the same issues in a subsequent case. As early as 1889, Lord Halsbury LC said that "it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again": see Reichel v McGrath (1889) 14 AC 665 at 668. This principle is clearly infringed by seeking to maintain an application for orders in one court when identical orders have already been made in another.

10. I accept that there may be circumstances in which a person would be entitled to apply in another court for orders in identical terms which would apply in a different jurisdiction. However, the orders of the Family Court would obviously apply throughout Australia and this issue does not arise.

11. Ms Tonkin submitted that the appellant had been entitled to seek the same orders under the Protection Orders Act because any breach would constitute a criminal offence and expose the appellant to greater penalties than could be imposed by the Family Court for breach of the restraining orders already made. Furthermore, the appellant might be able to secure the respondent's prosecution by the simple expedient of a complaint to the police and the resultant prosecution would involve a more straightforward procedure than that laid down by the relevant provisions of the Family Law Act. Hence, she submitted, the relief granted, albeit by identical orders, might prove to be more effective.

12. The Family Court has power to impose substantial sanctions for breach of restraining orders of this kind, including imprisonment for periods of up to twelve months (see s 112AE Family Law Act), and the enforcement regime of which the appellant complains has been specifically devised to deal with people who have breached such orders. In the absence of anything more concrete than the submissions that have been made, I would be loathe to conclude that the amendments to the Family Law Act introducing these provisions were misconceived or that the statutory scheme thereby enacted was inferior to the provisions of more general application contained in the Territory enactment. Despite the impression that might be gained from the rhetoric of pre-election "law and order" campaigns, the answer to every social problem is not to be found in throwing people into prison for longer and longer periods. When people are struggling with the anguish caused by family breakdown, such a "solution" may not only engender further bitterness, but deprive children of contact with one of their parents and cause them emotional damage due to the ensuing conflict of loyalties. There are obviously cases in which sentences of imprisonment must be imposed. However, the Family Court has special experience in dealing with situations of family conflict and the mere fact that the Family Law Act enables a judge to consider other responses, such as counselling, does not justify a conclusion that enforcement proceedings are unlikely to prove effective.

13. In fact, as mentioned earlier, the orders sought in the Magistrates Court would prevent any action being pursued under the Family Law Act to enforce the orders made in the Family Court until any prosecution under the Protection Orders Act had been completed and even then, no further penalty could be imposed. Hence, having chosen to seek and obtain orders in one jurisdiction, the appellant was seeking to maintain in another jurisdiction an application for identical orders, the granting of which would have, ipso facto, substantially hindered enforcement of the orders already made and effectively enabled her to "opt out" of the enforcement regime applicable in the jurisdiction she had first invoked in favour of another.

14. The hope of obtaining further or more effective relief from another court has never been an answer to an objection that the maintenance of further or concurrent proceedings about the same issues constitutes an abuse of process. At least in the days before the High Court's decision in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; [2000] 203 CLR 503, the range of damages that might be awarded for personal injury could vary according to the jurisdiction in which an action was litigated, but it was never suggested that a plaintiff could conduct the proceedings in one state or territory and then reinstitute them in another in the hope of getting a supplementary award. All of the states and the self-governing territories have legislation providing for the issue of restraining orders and it would be an absurd waste of time and money to permit people to re-litigate the same cases in jurisdiction after jurisdiction. Furthermore, a person who consents to orders sought against him or her is entitled to do so in the knowledge that the making of those orders will bring to an end litigation concerning the issues thereby determined.

15. In my opinion, once the appellant had obtained the orders in the Family Court, the continued maintenance of proceedings for identical orders in the Magistrates Court constituted an abuse of process. They were rightly dismissed.

16. Accordingly, even though I have reached the same conclusion as his Worship for a different reason, the appeal must also be dismissed.

17. In deference to the submissions of Counsel, I should, perhaps, add that the same principle would strike down any application for relief of a nature and extent encompassed within orders already made or applied for in another court. It would also apply to an application for more extensive relief if the additional relief were sought only in a misguided attempt to prevent the application from being dismissed as an abuse of process. It would not, of course, apply to a bone fide application for more extensive relief, though it would be incumbent upon the applicant to establish that, notwithstanding the protection provided by the existing orders, there was a real need for the further orders sought.

18. I will hear Counsel as to costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 28 March 2003

Counsel for the appellant: Mr R Thomas

Solicitor for the appellant: Ken Johnston Bedford & Co

Counsel for the respondent: Ms A Tonkin

Solicitor for the respondent: Garry Bates & Co

Date of hearing: 13 March 2003

Date of judgment: 28 March 2003