Van Der Kreek, Re Judgments Enforcement (Reciprocal Arrangements) Act [1978] PGLawRp 553; [1978] PNGLR 398 (13 October 1978)

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[1978] PNGLR 398 - Re Judgments Enforcement (Reciprocal Arrangements) Act; Ex Parte Van Der Kreek

IN THE MATTER OF THE JUDGMENTS ENFORCEMENT (RECIPROCAL ARRANGEMENTS) ACT 1976 EX PARTE FRANS VAN DER KREEK RE PATRICIA VAN DER KREEK

PRIVATE INTERNATIONAL LAW - Enforcement of foreign judgments - Registration of “judgment” - Order of Family Court of Australia for cash sum by way of property settlement - Whether “judgment or order” made in “civil proceedings” - Broad definition - Distinction between divorce suit and ordinary civil suit discussed - Judgments Enforcement (Reciprocal Arrangements) Act 1976, s. 1.

WORDS AND PHRASES - “Civil proceedings” - Judgment or order obtained in - Whether applicable to order made in divorce proceedings - Judgments Enforcement (Reciprocal Arrangements) Act 1976, s. 1.

Section 1 of the Judgments Enforcement (Reciprocal Arrangements) Act 1976, defines “judgement” (sic), inter alia, as a judgment or order given or made by a court in any civil proceedings, or ...”

On an application to set aside the registration under the above Act, of an order made by the Family Court of Australia under the Family Law Act 1975 (Aust.) for payment of a sum of money by way of property settlement:

The words “civil proceedings” in s. 1. of the Judgments Enforcement (Reciprocal Arrangements) Act 1976, are not technical or governed by legal act and are broad enough to include an order for a cash property settlement, albeit in divorce proceedings, in other reciprocal jurisdictions.

There is nonetheless a distinction between a judgment made in a divorce suit and a judgment made in “an ordinary civil action”.

This was an application to set aside the registration under the Judgments Enforcement (Reciprocal Arrangements) Act 1976, (the order for registration having been made ex parte) of an order made by the Family Court of Australia under the Family Law Act 1975 (Aust.) for payment of a sum of money by way of property settlement.

RAINE DCJ: On 25th November, 1977 a Supreme Court judge in Queensland, exercising Federal jurisdiction under the Family Law Act 1975 (Aust.) made an order, inter alia, that the applicant here, Frans Van Der Kreek, “pay to the wife (the respondent here, Patricia Van Der Kreek) by way of property settlement the sum of fourteen thousand dollars ($A14,000.00), that sum to be paid in two instalments of seven thousand dollars the first instalment to be paid on or before the first day of March, 1978 and the second instalment of seven thousand dollars ($A7,000.00) to be paid on or before the first day of December, 1978”. (The part in brackets is my interpolation.)

The first instalment has not been paid. Apparently the applicant claims he is unable to comply with the order. However, the merits of the matter do not concern me, for I am solely engaged in interpreting the statute set out in the title to these proceedings. I am not impeded by any questions of fact or morality.

The first instalment not having been paid the respondent former wife, by her counsel Mr. Molloy, who now appears in my court, approached Saldanha J on 1st September, 1978. She obtained an order registering the foreign “judgment” in this court under the Act already referred to. I have put the word judgment in italics for the word, which is defined in s. 1 of the said Act, is said to have a different meaning than might be ascribed to it at first blush.

The application to register the “judgment” was made “ex parte”, which was quite permissible. Thus, if I rule that my brother Saldanha should not have made the order, then this is not to say, as it were, that I canvass the order his Honour made, or am critical of his Honour. Without argument, I would, no doubt, have made the order made by my brother. Mr. Kendell of counsel for the applicant husband now seeks to set aside the order made by Saldanha J It seems clear to me that I have all the power necessary to do this. I will not, if I accede to Mr. Kendell’s argument, be sitting in appeal on my brother. See Judgments Enforcement (Reciprocal Arrangements) Act 1976, s. 5.

Mr. Kendell points to the fact that the “judgment” is one from what I will call a Divorce Court. That is what it was, in essence, and this is important when one looks at some of the authorities. They call Divorce Courts, Family Courts now, a modern nicety, which, in my view does not mean a thing, they are Divorce Courts in my book, I do not care what more gentle label is applied to them.

Mr. Kendell draws my attention to one of the definitions in the Act, as contained in s. 1. It reads:

“ ‘judgment’ means a judgment or order given or made by a court in any civil proceedings, or a judgment or order ...”

(Matters concerning criminal, compensation or damages which it is agreed are not applicable here concludes the definition.) (The underlining is mine.)

Mr. Kendell submits that the order made in Queensland was not made in any civil proceedings, thus, counsel argues, the judgment does not reflect the sort of order made, for example, in a straightforward common law action for damages. Mr. Kendell discussed the difference between actions and suits. I will turn to this later. His opponent, Mr. Molloy, did not really contest Mr. Kendell’s general arguments. The plinth of his argument is that the word “proceedings” in the definition so widens the field that I can disregard the distinction that exists, according to Mr. Kendell, between a judgment in a civil action and a judgment in a divorce suit. I might add that I am adopting the spelling of the Act when I say “judgement”. The Shorter Oxford says that the extra “e” is optional but not to be preferred. For myself I think that it should be removed, and I believe that “judgment” is correct, and that “judgement” is “de trop”.

I think the above sets the lines of battle. Before coming to consider the matter I should add that Mr. Kendell concedes, rightly I believe, that if I am against him as to the meaning of “judgement” (sic), that there is nothing to prevent me upholding the order of Saldanha J Mr. Kendell’s eggs are all in the one basket.

It does appear to me that there is a very clear distinction between a Divorce Court and, for instance, a court dealing with an action at common law, and, consequently, an equally clear distinction between the decrees and orders the former court may make and the verdicts and orders that might be made by the latter. I do not believe that the change in approach to divorce under the new Australian legislation alters the situation. I will deal with this subsequently and cite some authorities. Mr. Molloy does not really cross swords with Mr. Kendell on this aspect. However, Mr. Molloy submits that the words I have underlined in s. 1, namely “civil proceedings”, put the matter beyond doubt. Mr. Molloy submits that he obtains a good deal of assistance from the judgments of the Court of Appeal, In re Binstead; Ex parte Dale[dxc]¹. That was a case in which a husband obtained a decree absolute for dissolution of marriage against his wife on the ground of her adultery. He taxed a bill of costs against the co-respondent, and when the costs were not paid the petitioner presented a bankruptcy petition against the co-respondent alleging that failure to comply with the bankruptcy notice was an act of bankruptcy. The Registrar was of opinion that the order for payment of the costs was not a “final judgment” within the meaning of sub-s. 1 (g) of s. 4 of the Bankruptcy Act 1833 (U.K.) and that accordingly the bankruptcy notice was invalid and the Registrar dismissed the bankruptcy petition. From that dismissal the petitioner appealed. It is interesting to see what the Bankruptcy Act contained and to see the distinction between s. 4 (1) (e), which was not available to the petitioner, and s. 4 (1) (g). They read:

N2>“(e) If execution issued against him has been levied by seizure and sale of his goods under process in an action in any Court, or in any civil proceeding in the High Court.”

N2>“(g) If a creditor has obtained a final judgment against him for any amount, and execution thereon not having been stayed, has served on him in England, or, by leave of the Court, elsewhere, a bankruptcy notice under this Act, requiring him to pay the judgment debt in accordance with the terms of the judgment, or to secure or compound for it to the satisfaction of the creditor or the Court, and he does not, within seven days after service of the notice, in case the service is effected in England, and in case the service is effected elsewhere, then within the time limited in that behalf by the order giving leave to effect the service, either comply with the requirements of the notice, or satisfy the Court that he has a counter-claim, set-off, or cross-demand which equals or exceeds the amount of the judgment debt, and which he could not set up in the action in which the judgment was obtained.”

I appreciate very well that In re Binstead; Ex parte Dale[dxci]² the words concerning the court were “obtained a final judgment”. As I read the judgments of their Lordships, and, in particular the judgment of Kay L.J, their Lordships show, very clearly, the distinction between the more usual and mundane situations that obtain where a simple common law verdict is under consideration, as opposed to the situation that I have to deal with.

I would add the judgment of Kay L.J to some other judgments I will be referring to when I seek to distinguish a divorce suit from what I might describe, in a very broad way, as “an ordinary civil action”. His Lordship’s judgment commences at p. 206 of the above report.

There seems no doubt that Mr. Kendell is correct in distinguishing a divorce suit from other processes. Gavan Duffy J said in Catmull v. Catmull[dxcii]³ “A suit for divorce is not an action”. In Adams v. Adams[dxciii]⁴ a very great judge, Sir Leo Cussen, said:

“In the first place, the suit for divorce, though a civil and not a criminal proceeding, differs in several respects from a civil action. The Court has to consider not only the interests of the parties but the interests of the public and of public morality, and the desirability of preserving the marriage tie except in the cases where the Legislature has provided for its dissolution. In accordance with the Act, the Court insists on proof of the facts relied upon and will not act on the admissions of parties or on an estoppel, and the Court is bound to inquire into certain matters constituting absolute bars, so far as it reasonably can, and, subject to statutory provisions, may inquire into other matters, such as condonation and those which constitute discretionary bars. In such a suit the person claiming relief may be said to be ‘in petitorio’, and bound to disclose all material facts by analogy to the rule long acted on with regard to what were called ‘petitions of course’, and orders thereon. In such cases, if an order were obtained on misrepresentation or suppression of material facts, it would be discharged without regard to the merits of the case: See Encyclopaedia of the Laws of England under the title ‘Petition’. But the petitioner was at liberty to lodge another and proper petition.”

In Ramsay v. Ramsay and Lett[dxciv]⁵ Murray J expressed his agreement with the arguments of Mr. Villeneuve Smith, who was counsel for the petitioner, whose submissions appear at p. 247 and read as follows:

“The only grounds on which the petitioner could be charged are s. 44 of the Jury Act, 1862, or the substituted section, s. 2 of the Jury Act Amendment Act, 1907, but the words ‘civil action’ there used are not appropriate to describe a matrimonial suit. Prior to 1858 an Act of Parliament was necessary to secure a divorce. By the Act of 1867 this Court received the jurisdiction of the ecclesiastical Courts. Under that Act proceedings were called causes or suits, and the Matrimonial Causes Act, 1867, and the rules form a complete code. There are various distinctions between actions and matrimonial proceedings, e.g., in a matrimonial suit there is no cause of action; there is no remedy in the legal sense, only a change of status; the husband is always liable for wife’s costs; there is no judgment but a decree, and there can be no judgment by consent; the Crown Proctor has power to intervene; there is the lapse of time between the decree nisi and the decree absolute.

He cited In re Binstead; Ex parte Dale, [1892] UKLawRpKQB 218; [1893] 1 Q.B. 199, and referred to 1 Halsbury’s Laws of England (1907), Title, Action, pp. 3, 4 and 5.”

Counsel also referred me to two decisions of the High Court of Australia. They are The Minister for Works for the Government of Western Australia v. Civil and Civic Pty. Ltd.[dxcv]⁶ and The Adelaide Fruit and Produce Exchange Co. Ltd. v. The Corporation of the City of Adelaide[dxcvi]⁷. Without in any way intending to seem critical of those decisions I do not gain assistance from them. Possibly I did not take the point counsel made; however, it seems to matter not, because I entirely agree, as does Mr. Molloy, with Mr. Kendell’s submission as to the very real difference between a divorce suit and other types of actions. I have never had the need to consider this either at the Bar or on the Bench. However, had somebody posed the question before this to me I rather think that my instinctive reaction would have been as stated in the judgments from which I have cited. Probably my reaction as one who was twenty-one years at the Bar in a then pre-Judicature Act State would be stronger than that held by Australians from Judicature Act States. In New South Wales a divorce case was referred to as a suit. Of course, I concede that so was an equity case. But in my home State I think the Bar saw a big distinction between divorce suits and very different types of actions. The pleadings were different than at common law and the remedies sought, in many cases, were vastly different than the aims sought to be achieved in common law and other pleadings.

N1>I do not think that all this was lost on whomsoever drafted s. 1 of the Judgments Enforcement (Reciprocal Arrangements) Act 1976. I think his words “civil proceedings” were intended to cast a wide net, and I am of opinion that they did indeed. With respect, I do think that the draftsman might have made things rather clearer, and this would have avoided the costs incurred by this application. Had the definition said “civil action” or “civil cause” instead of “civil proceedings” Mr. Kendell would have succeeded. I also note that the draftsman would have been well aware of the fact that I have no power here, to attach a delinquent for contempt of court on account of non-payment of an order such as this, or an order for maintenance. In my opinion this void was filled by the use of the words “civil proceedings”.

N1>I confirm the orders made by Saldanha J and I dismiss this application with costs, as I believe the words “civil proceedings”, words that are not technical or governed by legal art, really are quite broad enough to include any order for a cash property settlement, albeit in divorce proceedings.

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[dxc][1893] 1 Q.B. 199.

[dxci][1893] 1 Q.B. 199.

[dxcii][1933] VicLawRp 38; [1933] V.L.R. 355 at p. 357.

[dxciii][1927] ArgusLawRp 112; [1928] V.L.R. 90 at p. 93.

[dxciv][1914] SALawRp 18; [1914] S.A.L.R. 246 at p. 249.

[dxcv](1967) 116 C.L.R. 273.

[dxcvi][1960] HCA 61; (1960) 105 C.L.R. 428.

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Papua New Guinea Law Reports

Van Der Kreek, Re Judgments Enforcement (Reciprocal Arrangements) Act [1978] PGLawRp 553; [1978] PNGLR 398 (13 October 1978)

Papua New Guinea Law Reports - 1978