Davies v Hawthorn [2004] ACTSC 119 (22 November 2004)

Last Updated: 25 November 2004

JENNIFER MAY DAVIES v PETER JOHN GEORGE HAWTHORN

[2004] ACTSC 119 (22 November 2004)

PRACTICE AND PROCEDURE - strike out application - to be determined on the pleadings - evidence inadmissible.

DOMESTIC RELATIONSHIPS - property adjustment - earlier periods of cohabitation relevant.

Domestic Relationships Act 1994, s 3, s 11, s 13

De Facto Relationships Act 1984 (NSW) (now the Property (Relationships) Act 1984 (NSW))

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Mathaman v Nabalco Pty Ltd (1969) 14 FLR 10

Republic of Peru v Peruvian Guano Company (1887) 36 Ch D 489

Jones v Grech [2001] NSWCA 208, (2001) 27 Fam LR 711

Roy v Sturgeon (1987) 11 NSWLR 454

Foster v Evans (unreported, Supreme Court of New South Wales, 31 October 1997)

Griffiths and Brodigan (1995) 20 Fam LR 822

Fuller v Taaffe (1997) 23 Fam LR 702

Evans v Marmont (1997) 42 NSWLR 70

No SC 370 of 2004

Judge: Connolly J

Supreme Court of the ACT

Date: 22 November 2004

IN THE SUPREME COURT OF THE )

) No SC 370 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JENNIFER MAY DAVIES

Plaintiff

AND: PETER JOHN GEORGE HAWTHORN

Defendant

ORDER

Judge: Connolly J

Date: 22 November 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The notice of motion be dismissed.

1. This is an application by way of notice of motion of 22 October 2004 to strike out the plaintiff's statement of claim on the basis that it discloses no reasonable cause of action and is statute barred. The substantive action is a claim for property orders arising out of a domestic relationship pursuant to the Domestic Relationships Act 1994 (the Act). By the statement of claim dated 30 July 2004 the plaintiff claims that she and the defendant -

lived in a domestic relationship from 1994 until January 2001 with two periods of separation of approximately 1 month each in 1999 and 2001.

She asserts that during these periods of separation she and the defendant remained living together under the same roof at premises in the Australian Capital Territory. She asserts that from the winter of 2001 to December 2003 the parties lived together in a domestic relationship, that from 1994 to January 2001 they lived together in the ACT and from the winter of 2001 until separation in 2003 the parties lived at a property in Murrumbateman, just across the ACT border in rural New South Wales.

2. A defence has been filed, which admits that the parties did live in a domestic relationship in respect of a period from 1995 to March 1999, and again for a period from December 1999 to late 2000. The defendant also admits that from September 2001 to February 2002 they lived in a third domestic relationship in New South Wales.

3. The Act allows one party to a domestic relationship to seek an order from the Court to adjust property interests. A domestic relationship is defined in s 3(1) of the Act to mean "a personal relationship (other than a legal marriage) between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other, and includes a de facto marriage". It is apparent that the concept of a domestic relationship under ACT legislation is broader than the concept of a de facto relationship under legislation in other States. Under the definition of a domestic relationship, the Act makes clear in s 3(2)(a) that "a personal relationship may exist between persons although they are not members of the same household". It may be arguable at trial that although these parties underwent several separations and were not in a de facto relationship for the entire period from 1995 to 2003, nevertheless they met the broader criteria in the ACT law for a domestic relationship even during periods where they were not living together in a de facto relationship.

4. The defendant's case on the notice of motion is that the claim is statute barred in that s 13 of the Act provides that an application for an adjustment of property interests under the Act "shall not be made more than 2 years after the day on which the relationship ended". There is provision to apply to extend time, but this has not been done.

5. The defendant argues that the claim refers to three distinct domestic relationships, and that in respect of the first two, being from 1994 to some time in 1999, and then from 1999 to January 2001, no application for property adjustment may be brought because the application in May 2004 is outside the two year statutory time limit for relationships ending in 1999 and 2001.

6. The defendant in its defence acknowledges a third domestic relationship, which he says lasted from September 2001 to February 2002. The defendant sought to tender affidavit evidence on the hearing of the notice of motion in respect of the time that this third domestic relationship lasted, it being his case that this relationship ended in February 2002 rather than December 2003, as pleaded in the statement of claim.

7. I ruled that evidence was not admissible on this question on a strike out application, and that the matter should be argued on the basis that the plaintiff would be able to prove the version of facts pleaded in the statement of claim. This is in accordance with well established authority that on a strike out action no evidence is admissible, and the applicant will succeed only if they establish that, even on the version of facts pleaded by a plaintiff, the substantive action "discloses a case which the court is satisfied cannot succeed" (per Barwick CJ, General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129). This question is to be determined on the basis of the pleadings and, as Blackburn J said in Mathaman v Nabalco Pty Ltd (1969) 14 FLR 10 at 13, "There being no issue of fact, evidence is not admissible". This proposition can be traced back to the ruling in Republic of Peru v Peruvian Guano Company (1887) 36 Ch D 489 where it is recorded at 494 that Chitty J ruled that on a strike out application the matter -

... must be tried upon the allegations contained in the pleadings, which for the purposes of the motion must be assumed to be true, and no evidence is admissible in support of the Defendants' case that the pleadings, which can alone be looked at, disclose no reasonable cause of action.

8. On the pleadings, the plaintiff alleges that the last period of their domestic relationship ended in December 2003, and accordingly the defendant cannot argue on the strike out application that the application, brought in May 2004, is out of time.

9. Mr Brzostowski, for the plaintiff/respondent, argued that, as the last occurring relationship is not statute barred and allows a claim to be brought, it is open to the plaintiff to plead earlier periods of cohabitation, even if these domestic relationships may have come to an end at a time outside the two year time limit permitted under the Act, because the Court, seized with an application properly brought in respect of a relationship that may have extended over a long period with periods in which the parties were not in a domestic relationship, may have regard to the totality of the relationship in making an order for property adjustment.

10. This has been held to be the law in New South Wales in relation to an application for a property adjustment pursuant to the De Facto Relationships Act 1984 (NSW) (now Property (Relationships) Act 1984 (NSW). In Jones v Grech [2001] NSWCA 208, (2001) 27 Fam LR 711 the parties had been involved in a series of de facto relationships, within the meaning of that Act, over a long period from 1965 to 1997, with breaks. The Master formed the view that he could only consider the most recent period of cohabitation, from 1995 to 1997, which was brought within time, in determining an order to adjust property. On appeal, the Court of Appeal held (per Davies and Ipp JJA, Powell JA contra) that contributions made prior to that relationship, and occurring during an earlier relationship, could be considered in an application to adjust property interests.

11. Ipp JA noted at 729 that -

It is not uncommon for parties to a de facto relationship to terminate their relationship and, thereafter, at a later date, to re-commence living in a de facto relationship. On occasions, the same parties may live in a de facto relationship over many intermittent periods. The question therefore arises whether, for the purposes of [the adjustment of property power], each one of the intermittent periods is to be regarded as constituting a separate and different de facto relationship, or whether the aggregate of the intermittent periods is to be considered as being one de facto relationship to which the court should have regard.

12. His Honour concluded that the latter was the proper view, noting that such an interpretation is consistent with the legislative purpose of the NSW Act. He said at 731 -

The purpose of the Act is remedial. It is intended to remedy injustice, inter alia, because the law prior to the Act had "the effect of permitting a de facto partner to be enriched at the expense of the contributions, whether financial or non-financial, made by the other partner". For that intention to be adequately fulfilled, it is necessary, in my view, for the contributions made by a de facto partner to be assessed by reference to the entire period of the de facto relationship, irrespective of whether it is made up of a series of broken or intermittent periods or whether it is constituted by one continuous period of cohabitation.

13. Ipp JA noted that there had been a divergence of views at single instance on this question, with Powell J in Roy v Sturgeon (1987) 11 NSWLR 454 holding that it was not open to the Court to have regard to contributions made prior to the commencement of a relationship. A different view was expressed by Bryson J in Foster v Evans (unreported, Supreme Court of New South Wales, 31 October 1997). A similar view, declining to follow Roy v Sturgeon, was taken by judges of the Family Court in matters cross-vested to that Court - Griffiths and Brodigan (1995) 20 Fam LR 822 per Chisholm J; Fuller v Taaffe (1997) 23 Fam LR 702 per Rourke J.

14. Davies JA agreed with Ipp JA that the Court, in considering whether to make a property adjustment, had to look at the totality of the relationship. His Honour said that the Court should -

... look at events which occurred prior to the commencement of the last period of the de facto relationship. The actions of the parties must be placed into context and given weight and relevance according to the incidents of their relationship over time. Including during any prior time when a relationship existed between them.

15. As Gleeson CJ and McLelland CJ in Eq said in Evans v Marmont (1997) 42 NSWLR 70 at 75 -

It would be unrealistic to attempt to evaluate contributions of the kinds referred to in par (a) and par (b) for the purpose of determining what is just and equitable having regard to those contributions, in isolation from the nature and incidents of the relationship as a whole ...

16. These decisions arose in the different context of the New South Wales De Facto Relationships Act, and as noted in [3] above, the definition of a domestic relationship pursuant to the ACT law is broader than the definition of a de facto relationship under NSW law. Notwithstanding this, it seems to me that the reasoning is persuasive, and that it is open to this Court to hold that, provided there is a matter properly before it, previous periods where the parties were in a domestic relationship would be relevant and should be taken into account in determining whether to make a property adjustment. It cannot be said that such an argument is untenable, and so it seems to me that, provided the later period of the domestic relationship is properly before the Court, the pleadings referring to the earlier periods of cohabitation should not be struck out.

17. Mr Thomas, for the defendant/applicant, argued that the later period of cohabitation, which he acknowledged must be taken on the pleadings from 2001 to December 2003 and so within time, did not give rise to a claim under the Act because it occurred wholly within New South Wales, and the property that is sought to be made the subject of the property adjustment order is the rural property in New South Wales.

18. The Act makes provision for certain residential prerequisites for invoking the jurisdiction to make property adjustment orders. Section 11 provides -

Prerequisite for relief - residence etc

(1) A court shall not make an order under this part unless it is satisfied-

(a) that either or both of the parties to the domestic relationship were resident in the ACT on the day on which the application for the order was made; and

(b) that-

(i) both parties to the relationship have resided in the ACT for at least 1/3 of the period of their relationship; or

(ii) substantial contributions of the kind referred to in section 15(1)(b) or (c) have been made in the ACT by the applicant.

(2) If the court is so satisfied, it may make or refuse to make an order under this part because of facts and circumstances even though they, or some of them, took place before the commencement day or outside the ACT.

19. The statement of claim asserts that the plaintiff is a resident of the ACT, and accordingly the first part of this provision is made out. The statement of claim further asserts that the parties resided together in the ACT from 1994 to January 2001, and then from "the winter of 2001 until December 2003" in New South Wales. Mr Thomas argued that the plaintiff does not fulfil the first requirement of s 11(1)(b) in that, for what he says is the only period of the relationship that is properly brought within time, the parties lived wholly in New South Wales. Mr Brzostowski argued that the Court should adopt the broader view of domestic relationship and hold that, even though there have been periods between 1994 and 2003 where the parties were not in a de facto relationship, they were in a domestic relationship (as defined) throughout the period, including the periods when they lived separately. On this basis, they would have resided in the ACT for at least one third of the relationship, which on this view lasted from 1994 to December 2003.

20. This, it seems to me, is an arguable proposition, and accordingly I should not strike the claim out. As Barwick CJ said in General Steel Industries (op cit) -

the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" [the pleadings] "to stand would involve useless expense".

21. I cannot say that the argument advanced by the plaintiff is so untenable that it would meet this test. Moreover, there is an alternative argument open to the plaintiff even if she was to fail at the final hearing to persuade the Court that s 11(1)(b) is satisfied. The alternative basis for invoking the Court's jurisdiction, contained in 11(1)(b) is where the Court is satisfied that substantial contributions were made in the ACT by the plaintiff in relation to the acquisition of the property subject to the order for adjustment. In the statement of claim the plaintiff alleges that she made contributions throughout the 1990's to the business of the defendant. It is acknowledged on the pleadings that the Murrumbateman property was only purchased by the defendant in 2000, but the contributions made by the plaintiff to the success of his business venture in Canberra could nevertheless be relevant. On this alternative basis, it would again seem to me that the plaintiff's argument could not be said to be untenable.

22. It seems to me that the defendant has not met the stringent test that must be met to justify the striking out of a statement of claim. The notice of motion must be dismissed. I will hear the parties as to costs, and any consequential orders.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 22 November 2004

Counsel for the plaintiff: Mr G Brzostowski

Solicitor for the plaintiff: Farrar Gesini & Dunn

Counsel for the defendant: Mr R Thomas

Solicitor for the defendant: Elrington Boardman Allport

Date of hearing: 5 November 2004

Date of judgment: 22 November 2004