Van Der Kreek v Van Der Kreek [1979] PGSC 28; [1979] PNGLR 185 (6 July 1979)

IN THE MATTER OF THE JUDGMENTS ENFORCEMENT (RECIPROCAL ARRANGEMENTS) ACT 1976 VAN DER KREEK

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PRIVATE INTERNATIONAL LAW - Enforcement of foreign judgments - Registration of “judgment” - Order of Supreme Court of Queensland - Jurisdiction exercised under Family Law Act 1975 (Aust.) - Order for cash sum by way of property settlement - Whether “judgment or order made in civil proceedings” - Broad definition - Judgments Enforcement (Reciprocal Arrangements) Act 1976, s. 1.

PRIVATE INTERNATIONAL LAW - Enforcement of foreign judgments - Registration - Grounds for - Recognition of jurisdiction of original court - Order of Supreme Court of Queensland - Jurisdiction exercised under Family Law Act 1975 (Aust.) - Order for cash sum by way of property settlement - All property of husband situate in Papua New Guinea - Whether subject matter of action “immovable property” - Whether subject matter of action “movable property” - Whether judgment given in action in rem or in personam - Recognition outside Statutory provisions - Judgments Enforcement (Reciprocal Arrangements) Act 1976, ss. 1 and 5[ccvii]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.

WORDS AND PHRASES - “Actions in personam” - “Actions in rem” - Enforcement of foreign judgments - Judgments Enforcement (Reciprocal Arrangements) Act 1976, s. 5[ccviii]².

APPEAL - Practice and procedure - Leave to add ground of appeal - Leave sought during address in reply - Fresh point of law - Grounds for allowing argument.

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

Section 5(2)(a) of the Act, recognises the jurisdiction of the original court as to actions in personam, but “matrimonial matters” are specifically excluded from the operation of the section.

Section 5(2)(b) of the Act, recognises the jurisdiction of the original court “in the case of a judgement given in an action of which the subject matter was immovable property, or in an action in rem of which the subject matter was movable property, if the property in question was at the time of the proceedings in the original court situated in the country of that court.”

In matrimonial proceedings instituted in Queensland under the provisions of the Matrimonial Causes Act 1959 (Aust.) but finally determined under the provisions of the Family Law Act 1975 (Aust.), an order was made for payment of a sum of money by way of property settlement. Neither the claim for property settlement nor the order made in relation thereto was directed to any specific property, although all property of the appellant husband was situated in Papua New Guinea.

The Queensland judgment was ordered to be registered in the National Court pursuant to s. 3 of the Act, upon an ex parte application with leave being granted to the appellant to apply to set aside registration. The application to set aside registration being dismissed, (see Ex parte Van der Kreek; Re Van der Kreek, [1978] P.N.G.L.R. 398), the appellant appealed to the Supreme Court. In the course of his address in reply counsel for the appellant sought to add an additional ground of appeal on a point of law not argued in the court of appeal.

N1>(1) Applications to add grounds of appeal in the course of an address in reply will not be entertained by the Supreme Court.

N1>(2) Where a party wishes on appeal to raise points of law which have not been raised in the courts below, the court of appeal must be satisfied that it has before it all the facts bearing on the new ground as completely as would have been the case if the question had arisen at the trial, that it is conceded that the case at trial would not have been presented differently had the point been taken then, so that the court on appeal may be in a position to make any order that ought to have been made originally.

Port Jackson Stevedoring Pty. Ltd. v. Salmond & Spraggon (Australia) Pty. Ltd. [1978] HCA 8; (1978), 139 C.L.R. 231, at p. 241, applied.

N1>(3) Leave to argue the fresh ground should be granted (the original grounds of appeal being sufficiently broad in any event to enable the new ground to be raised), but subject to the qualification that where any doubts on factual matters arose, assumptions favourable to the respondent should be made.

N1>(4) The words “civil proceedings” in s. 1 of the Act are not technical or governed by legal art and are broad enough to include an order for a cash property settlement, albeit in divorce proceedings.

N1>(5) Whether the subject matter of any particular judgment debars it from registration under the Judgments Enforcement (Reciprocal Arrangements) Act 1976 must be determined according to the Act itself, and not the source of jurisdiction of the court pronouncing the judgment.

N1>(6) Accordingly, the fact that the Queensland Supreme Court (a court gazetted under the Act) was exercising the jurisdiction of the Australian Family Law Court (a court not gazetted under the Act) was of no consequence.

N1>(7) In determining the jurisdiction of the original court under s. 5(2)(b) of the Act, regard must be had to the subject matter of the action itself and not the judgment resulting from it.

N1>(8) Where divorce legislation gives one party to the marriage the right to make a claim for settlement of property against the other, and that other party happens to have assets which include immovable property, does not mean that the immovable property is the subject matter of the claim unless the claim specifically seeks a settlement of it or any part of it.

N1>(9) It being assumed in favour of the respondent that the claim for settlement of property made in the divorce petition in Queensland was not directed to any specific property at all, the subject matter of the action was, accordingly, not “immovable property” within the meaning of s. 5(2)(b) of the Act.

N1>(10) It being assumed in favour of the respondent that the claim for settlement of property made in the divorce petition in Queensland was not directed to any specific property at all, the subject matter of the action was, accordingly, not an order in rem of which the subject matter was “movable property” within the meaning of s. 5(2)(b) of the Act.

N1>(11) Although a decree in divorce proceedings is to be regarded as a judgment in rem because it affects the status of persons, a judgment (ancillary to a divorce decree), for settlement of property is a judgment in personam, and accordingly outside the ambit of s. 5(2)(b) of the Act.

Dicey and Morris on The Conflict of Laws (9th ed., 1973), p. 1050, referred to.

N1>(12) Nevertheless, the judgment or order for settlement of property was entitled to be registered under s. 5(2)(c) of the Act, which subsection is to be interpreted as meaning that judgments which fall outside the definition of judgments in personam, judgments concerning immovables, or judgments in rem concerning movables, are entitled to registration if the foreign court exercised a jurisdiction which would be entitled to recognition under the law of the forum apart from the Act.

This was an appeal against an order dismissing an application to set aside registration, under the Judgments Enforcement (Reciprocal Arrangements) Act 1976, of an order made by the Supreme Court of Queensland pursuant to the Family Law Act 1975 (Aust.).

PRENTICE CJ: Application has been brought to set aside the registration in the National Court under the Judgments Enforcement (Reciprocal Arrangements) Act 1976 of Papua New Guinea, of a judgment in the Supreme Court of Queensland. This appeal is brought from the dismissal of that application.

The point argued turns on the interpretation of s. 5 as enlightened by s. 1(2) of the Act.

Section 5(2)(a) recognises the jurisdiction of the original court as to actions against the person (“in personam”), in the cases only of certain types of such action. But “matrimonial matters” such as is the instant case, are specifically excluded from the s. 5(2)(a) category of actions “in personam”.

Section 5(2)(b) allows jurisdiction in the original court to be recognised, where the subject matter of the action was immovable property in the country of the original court. But in my opinion the subject matter of the action here was not immovable property.

Section 5(2)(b) alternatively, allows jurisdiction in the original court to be recognised where the action was an action against specific property (if I may so construe “in rem”) if the subject matter was movable property situated in the country of the original court. I am of the opinion that the action could not be so construed as an action “in rem”; it was an action seeking a property settlement or lump sum, but was not directed at specific property.

The action appears to me to have been an action of a nature against the person (but being of matrimonial nature, was not an “action in personam” for purposes of the Act). It does not come within s. 5(2)(a) or (b). But I have no doubt that the jurisdiction of the original court would be recognised in the Law of Papua New Guinea; and that the judgment was registrable under s. 5(2)(c).

I do not find it necessary to produce my reasoning in detail, for I have had the advantage of reading my brother Pritchard J.’s judgment in draft form, and I agree in its reasoning on the procedural and substantive questions involved, as there expressed. I would dismiss the appeal.

PRITCHARD J: This is an appeal against a National Court decision dismissing an application to set aside the registration of a judgment of the Supreme Court of Queensland pursuant to the provisions of the Judgments Enforcement (Reciprocal Arrangements) Act 1976 (hereinafter called “our Act”).

The judgment in question was delivered by W. B. Campbell J. on 25th November, 1977, in the Matrimonial Causes Jurisdiction of the Queensland Supreme Court. The respondent in the appeal before us had been the petitioner in the suit in that court and her husband, the appellant here, was the respondent. On the last day of the hearing his Honour had pronounced a decree for dissolution of the marriage and made orders relating to custody, access and maintenance of the parties’ infant children. His Honour reserved his decision on the questions of maintenance for the wife and property settlement. It is his judgment with regard to this latter aspect which is the subject of this appeal. Some of the detail of the judgment I will discuss later, but suffice it to say now that his Honour ordered the appellant to pay to the respondent the sum of $14,000 by way of property settlement, $7,000 to be paid by 1st March, 1978, and the remaining $7,000 by 1st December, 1978. It should be pointed out here that the divorce suit itself had been instituted in 1974 under the Australian Matrimonial Causes Act 1959 but due to the coming into force of the Family Law Act 1975 (Aust.) in Australia (its commencement date being 5th January, 1976) the suit was caught up by the transitional provisions of that Act and his Honour’s order the subject of this appeal was made pursuant to it.

The judgment, or rather that portion of it relating to the first $7,000 then payable, was ordered to be registered in the National Court pursuant to s. 3 of our Act, by Saldanha J. on 1st September, 1978. In Papua New Guinean currency, the judgment was registered in the sum of K6,074.81. The application was made ex parte and the order provided that the appellant be at liberty to apply to set the registration aside within seven days of being served with notice of it. As the title to our Act indicates, the basis of entitlement to registration is reciprocity, and the Supreme Courts of the various Australian States were first declared by the Minister for Justice by notice in the National Gazette G25 of 17th March, 1977, as courts which would extend substantial reciprocity of treatment in the enforcement of our National Court judgments and were thus declared to be courts for the purpose of Pt II of our Act. Part II deals with registration of foreign judgments and I will discuss the detail of some of its provisions shortly. Part I of our Act is headed “Preliminary” and the last part, Pt III, “Miscellaneous”. The declaration referred to was amended by further declaration in National Gazette G39 of 19th May, 1977, to include the High Court of Australia. Certain courts in New York State of the U.S.A. have also been declared under our Act but the Family Court of Australia, created under s. 21 of the Family Law Act 1975 (Aust.) and for that matter the Federal Court of Australia, have not at the time of this judgment been so declared.

Having been served with notice of registration the appellant applied to the National Court to have the registration set aside. No specific ground was relied on in the notice of motion founding the application. Section 5 of our Act sets out cases in which registered judgments shall or may be set aside and s. 6 further defines the power of the registering court on such applications. The application was defended by the respondent, both parties being represented by counsel, and was heard by the Deputy Chief Justice on 10th October, 1978, with judgment being delivered on 13th October. The only basis on which the application was in fact argued by counsel for the applicant was that the judgment should not have been registered in the first place because it was an order made in a divorce suit rather than a judgment in an action. The argument proceeded on the distinctions which have been drawn between matters of divorce and ordinary civil actions, for example in Catmull v. Catmull[ccix]³ per Gavan Duffy J., “A suit for divorce is not an action ...” and Adams v. Adams[ccx]⁴ in which 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 ... [etc.]”

The definition of “judgment” in s. 1 (Interpretation) of our Act is as follows:

“ ‘judgement’ means a judgement or order given or made by a court in any civil proceedings, or a judgement or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party;”

“I think his [i.e. the draftsman’s] words ‘civil proceedings’ were intended to cast a wide net, and I am of opinion that they did indeed. [And later,] ... 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.”

I agree completely with these remarks and for this reason will not dwell on the detail of his Honour’s judgment. If this appeal were to depend only upon this issue it could be disposed of at once, for Mr. Griffin, counsel for the appellant, barely alluded to it.

N2>“1. That his Honour erred in finding the order made by his Honour Mr. Justice Campbell in the Supreme Court of Queensland on the 25th November, 1977, was a judgement capable of registration pursuant to the Judgments Enforcement (Reciprocal Arrangements) Act 1976.

N2>2. That his Honour erred in finding that the order of Mr. Justice Campbell of the Supreme Court of Queensland dated the 25th November, 1977, was an order made in civil proceedings.”

The first argument put to us by Mr. Griffin is what I would describe as a twist to that put on the original application. It is that because the Family Law Court has never been gazetted as a reciprocating court under our Act the clear intention manifested by the gazetted declarations of certain Australian courts as courts declared for the purposes of Pt II of our Act, is that matrimonial causes are not included and that ordinary actions in personam at law alone are.

To my mind the answer to that argument clearly is that the gazetted declarations do not touch on the jurisdiction of the declared courts at all. Before the Family Law Act became law in Australia the State Supreme Courts exercised Federal jurisdiction in divorce under the former Matrimonial Causes Act 1959 (Aust.). Judgments and orders made under that Act are still capable of being enforced under our Act, just as judgments of our National Court in its matrimonial causes jurisdiction may be enforced through the appropriate Supreme Courts in the Australian States, subject of course to fulfilling the requirements of the reciprocating legislation in each instance. The fact that in the present case the Queensland Supreme Court was exercising a Federal divorce jurisdiction, albeit transitional, is of no consequence. It is to our Act one must look to see if the subject matter of any particular judgment debars it from registration, not the source of jurisdiction of the court which pronounced it, and it is on this aspect which Mr. Griffin’s next argument, indeed his main argument, proceeds.

The submission involves a matter of interpretation of our Act coupled with a consideration of certain provisions of the Family Law Act 1975 (Aust.). It is a submission of law which was not made in the National Court. As such, Mr. Molloy, counsel for the respondent, objects to it. His submission in this regard is that not only was the point not taken in the National Court but it was specifically conceded by counsel for the appellant there, that the only issue was whether the judgment registered was a judgment within the definition above-quoted or not. Further he claims that the point does not fall within the grounds of appeal set out above. For it to be relied on, Mr. Molloy says, leave would be required and not only has it not been sought, but even if it had, it should have been refused in view of the above matters.

Undeterred by this, Mr. Griffin in his address in reply, while not conceding it was necessary, applied for leave to amend the grounds of appeal. The ground he seeks to add is a summarised version of the argument he puts namely:

“The original judgment was given in an action in which the subject matter was immovable property and insofar as it also concerned movable property, it was a judgment in rem, and all the property the subject of the action in Queensland was situated outside that State, namely in Papua New Guinea.”

This court has indicated on several occasions recently that it disapproves of the practice of adding grounds of appeal at the last minute. It certainly will not entertain applications to add grounds of appeal in the course of an address in reply. However, in this matter I believe the first ground of appeal is broad enough to enable the argument to be put. As to Mr. Molloy’s submission that the point should not be allowed to be relied on in view of what occurred in the court below, I do not think that a statement by counsel as to what the only issue was must be taken as a binding concession that the law otherwise is against him. Reference was made to Port Jackson Stevedoring Pty. Ltd. v. Salmond & Spraggon (Australia) Pty. Ltd.[ccxii]⁶ where Barwick C.J. said:

“... it should only be in the clearest case and for the most cogent reasons that a party who has conceded matter at trial should be allowed to make the validity of what has been conceded the basis for overturning the result of the trial.”

In that case the Court of Appeal had allowed the issue to be raised on the footing that the appellant conceded that its case at the trial would not have been differently presented had the point been taken. The distinction between new points taken on appeal which involve pure questions of law and those which may have involved additional evidence in the court below is illustrated by the following cases.

“When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea. The expediency of adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in considering which the court of ultimate review is placed in a much less advantageous position than the courts below. But their Lordships have no hesitation in holding that the course ought not, in any case, to be followed, unless the Court is satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts, if fully investigated, would have supported the new plea.”

In Sutherland v. Thomson[ccxiv]⁸ Lord Halsbury in delivering a judgment concurred in by Lords Macnaghten, Robertson and Lindley, said:

“... I should have felt more difficulty about the other point if it had been raised in the court below. I do not in the least mean to say that it is an absolute objection against a good point, if it is a good point, to say that it has not been raised in the court below, because this House ought to make such an order as ought to have been made originally. But the peculiarity of this case is that this is a question which could only have been settled by proof, and we are asked to overrule the judgment of the Court of Sessions by a suggestion on which, if it was well founded, the Court might have been asked to reverse the proceedings before the Lord Ordinary and to order a proof. It is not merely a question of a point which is a good point, and remains a good point not being argued, but here something was to be done. If the objection was a good one, what the parties complaining ought to have done was to have put it before the Court of Sessions and asked the Court to do that which ought to have been done by the Lord Ordinary, namely, to allow a proof.”

In North Staffordshire Railway Co. v. Edge[ccxv]⁹ after discussing these last two authorities Lord Atkinson said:

“It is, no doubt, desirable that in every case coming on appeal before your Lordships, you should enjoy the great advantage of having before you the decision of the Court of Appeal upon all the points raised upon the appeal to this House. But it by no means follows that parties should never be permitted, in any case, to raise, and have decided here, questions which were not raised in the Court of Appeal, nor even in the court of first instance, though this House should thereby lose the advantage of having before it the decisions of both these tribunals on the new point. This House cannot on this ground escape, in my view, from the duty (to use Lord Halsbury’s words) ‘of making such an order as ought to have been made originally.’ In the present case the new point raised by the appellants is that s. 90 does not apply to through rates, and that the increased rate charged in the present case was in fact charged in respect of the haulage of the respondent’s goods over lines other than, and in addition to, the lines of the appellant company. Otherwise it would not be a through rate at all. Mr. Talbot, however, alleges that, if he had had notice of this point he could have shown, on grounds which he indicates, that the increased charge is made in respect of the transit over the Staffordshire line, and that line alone. If that be so, the point is a bad point. Its goodness or badness depends accordingly on a controverted issue of fact which the railway company have failed to raise at the trial or to have determined upon evidence.”

In the light of these authorities I would allow Mr. Griffin to rely on this fresh argument. Pending our ruling on this matter the matter was argued before us after Mr. Molloy was given the opportunity of an adjournment. In other cases when a party is surprised by fresh points being raised on appeal and the court feels they can properly be raised, that party may also be protected in costs, but that was unnecessary here.

In allowing the fresh argument to be relied on I would add one qualification which is in keeping with the principles discussed in the above cases. The argument itself is concerned with the subject matter of the Queensland proceedings. If in the course of the argument there arises any doubt as to what may or may not have been before the Queensland court, the only assumption I would be prepared to make would be that favourable to the respondent. Evidence as to what was before the Queensland court could have been called by the appellant in the court below. I will refer to this matter later.

In order to understand Mr. Griffin’s submission it is necessary to refer to the background and content of our Act. It is a post-Independence re-enactment, with minor modifications only, of the former Foreign Judgments (Reciprocal Enforcement) Act 1952. That Act had been passed by the Legislative Council of the then Territory of Papua and New Guinea to cater for the blending together of the two former Territories. Prior to that, Papua had been under the umbrella of Australian legislation and the Trust Territory of New Guinea had had in force for many years the Foreign Judgments (Reciprocal Enforcement) Ordinance 1936-1937. This Ordinance, repealed by the 1952 Act, was similar in format and content to the later legislation. All these enactments and those in existence in New Zealand, all but one of the Australian States, the Australian Territories and elsewhere, originate from the Foreign Judgments (Reciprocal Enforcement) Act 1933 of the United Kingdom, which applied the principle of registration to foreign countries for the first time. Prior to that, in England, under the Administration of Justice Act 1920 (U.K.) enforcement by registration of judgments of superior courts had been limited to the British Commonwealth. Similar legislation to that Act existed, and to some extent still exists throughout the Commonwealth, but it is unnecessary to consider it here.

The 1933 English Act and all the Acts which have originated from it, are similar in content although they are not identical. I set out s. 5 of our Act in full:

(1) On an application duly made by any party against whom a registered judgement may be enforced, the registration of the judgement:

N5>(i) that the judgement is not a judgement to which this Part applies or was registered in contravention of this Part; or

N5>(ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

N5>(iii) that the judgement debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or

N5>(v) that the enforcement of the judgement would be contrary to public policy in the country of the registering court; or

N5>(vi) that the rights under the judgement are not vested in the person by whom the application for registration was made; or

(b) may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the original court had at some time before the date of the judgement in the original court been the subject of a final and conclusive judgement by a court having jurisdiction in the matter.

(2) Subject to Subsection (3), for the purposes of this section the courts of the country of the original court shall be deemed to have had jurisdiction:

N5>(i) if the judgement debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings otherwise than for the purposes of protecting, or obtaining the release of, property seized, or threatened with seizure, in the proceedings or of contesting the jurisdiction of that court; or

N5>(ii) if the judgement debtor was plaintiff in, or counter-claimed in, the proceedings in the original court; or

N5>(iii) if the judgement debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of the country of that court; or

N5>(iv) if the judgement debtor, being a defendant in the original court, was at the time when the proceedings were instituted resident in, or being a body corporate had its principal place of business in, the country of that court; or

N5>(v) if the judgement debtor, being a defendant in the original court, had an office or place of business in the country of that court and the proceedings in that court were in respect of a transaction effected through or at that office or place; and

(b) in the case of a judgement given in an action of which the subject matter was immovable property or in an action in rem of which the subject matter was movable property, if the property in question was at the time of the proceedings in the original court situated in the country of that court; and

(c) in the case of a judgement given in an action other than an action of a type referred to in paragraph (a) or (b), if the jurisdiction of the original court is recognized by the law of the registering court.

(3) Notwithstanding anything in Subsection (2), the courts of the country of the original court shall not be deemed to have had jurisdiction —

(a) if the subject matter of the proceedings was immovable property outside the country of the original court; or

(b) except in the cases referred to in Subsection 2(a)(i), (ii) and (iii) and in Subsection 2(c), if the bringing of the proceedings in the original court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of the country of that court; or

(c) if the judgement debtor, being a defendant in the original proceedings, was a person who under the rules of Public International Law was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court.”

The other relevant provision is s. 1 of our Act, headed “INTERPRETATION”. Sub-section 5(2) of s. 1 is as follows:

N2>“(2) For the purposes of this Act, the expression ‘action in personam’ shall not be deemed to include any matrimonial cause or any proceedings in connexion with:

I will discuss briefly these provisions. Section 5(1)(a) sets out the circumstances in which a registering court must set aside the registration of a judgment. These are similar to the defences recognised by English common law to an action based on a foreign judgment.

Section 5 of our Act is similar to s. 4 of the 1933 English Act and a general discussion on that Act will be found in Cheshire on Private International Law (9th ed., 1974), p. 667 onwards and in Dicey and Morris on The Conflict of Laws (9th ed., 1973), pp. 990-991 and pp. 1050-1057. The similar Australian legislation is discussed by Professor Nygh, Conflict of Laws in Australia (3rd ed., 1976), p. 97 onwards. The English Act was considered in some detail by Widgery J. in Societe Co-operative Sidmetal v. Titan International Ltd.[ccxvi]¹⁰ where his Honour accepted the proposition that the Act was not one codifying the principles of common law whereby a foreign judgment would be recognised by English courts. Dicey and Morris (op. cit.) obviously take this view because in the format of Rules which that textbook adopts the various provisions of the English Act are dealt with together with the common law rules on the subject matter of each Rule.

In a newly developing nation such as ours, I personally would rather accept our Act as a codification so far as it goes, declare the common law on the subject matter inappropriate to the circumstances of this country under Sch. 2.2(1) of the Constitution and attempt to develop our own underlying law (Constitution Sch. 2.4) based on the principle of comity of nations and reciprocity, topics discussed by Widgery J. in the Titan case[ccxvii]¹¹. However the matter was not argued before us here and it is unnecessary to decide on this appeal.

Section 5(2) of our Act sets out the circumstances in which the courts of the country of the original court shall be deemed to have had jurisdiction. This relates back to s. 5(1)(a)(ii).

Section 5(2)(a) deals with judgments given in actions in personam. Because the judgment the subject of this appeal was given in a matrimonial cause, it is excluded from this category by virtue of s. 1(2) of our Act. Section 5(2)(a) differs from the common law in a number of ways. Professor Nygh discusses them at p. 101 onwards and Cheshire at p. 669 onwards in their respective works.

Section 5(2)(b) deals with judgments concerning property situated in the country of the original court. It specifies two different types of action, firstly actions in which the subject matter was immovable property and secondly actions in rem of which the subject matter was movable property.

I would firstly say that it is indeed unfortunate that Latin expressions such as “in personam” and “in rem” are used in legislation in post-Independence Papua New Guinea. Many of the members of Parliament must have been in doubt as to their meaning when the legislation was passed, particularly as their meaning has been the subject of argument and a degree of confusion in the courts for many years. Indeed as Dicey and Morris (op. cit.) say at p. 1014, “The question whether a foreign judgment is in personam or in rem is sometimes a difficult one on which English judges have been divided in opinion.” The authors cite a number of authorities to demonstrate this statement.

It is to s. 5(2)(b) of course that Mr. Griffin’s fresh argument is directed. The subject judgment is before us but the pleadings in the divorce suit are not. From the judgment it is clear that the appellant’s business interests were all in Papua New Guinea. His Honour the trial judge also said “the respondent’s property consists of real and personal property in New Guinea.” His Honour did not set out all the financial circumstances of the parties and did not go so far as to say that the appellant had no assets in Australia whatsoever. However it would appear all his assets were in this country. The respondent had assets both real and personal, in Australia. The judgment states “The petitioner seeks an order for maintenance and a property settlement in her own favour ...” and later “The petitioner’s counsel submitted that I should make an order for the payment to her by the respondent of a lump sum either by way of maintenance, settlement of property or both.” His Honour later referred to s. 72 and s. 75(2) of the Family Law Act 1975 (Aust.). These sections deal with the right of a spouse to maintenance and the matters which a court must take into consideration in dealing with that question. The detail of these sections need not concern us, for his Honour said “Taking into account the matters referred to in s. 72 and in sub-s. (2) of s. 75 of the Family Law Act I do not think the petitioner is entitled to or should receive a payment of maintenance of a periodic basis” and later “However, for reasons which I will give shortly I think that the petitioner is entitled to a lump sum payment from the respondent.” His Honour then went on to discuss several decisions under the Family Law Act 1975 (Aust.) concerning orders for lump sum payments, one of which was to the effect that such an order need not be directed to particular property. His Honour then said “Consequently, I am able to make an order for the payment of a lump sum under s. 79 which is not specifically related to any existing separate fund. In this case I consider that I should order that there be a settlement of part of the respondent’s property upon the petitioner.”

N2>“79. Alteration of property interests. (1) In proceedings with respect to the property of the parties to a marriage or either of them, the court may make such order as it thinks fit altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines.”

Thus the order made by the trial judge of a lump sum was not by way of maintenance but by way of alteration of the property interests of the parties under s. 79. Before making the final order his Honour went on to consider the matters which a court is required to take into account under that section, which include any matters relevant under the maintenance section s. 75(2). The power to award a lump sum exists under s. 80 of the Act.

It must be remembered however that it is the subject matter of the action with which s. 5(2)(b) of our Act is concerned, not the judgment resulting from it. The action in this case was instituted under the 1959 Australian Act and the powers of the courts under that Act (Pt VIII) are the same as those of our National Court under Pt VII of the Matrimonial Causes Act 1963. There is a general power “to make such a settlement of property to which the parties are, or either of them is entitled ... as the court considers just and equitable in the circumstances of the case” (s. 86(1)). In s. 87 the specific powers of the court are set out which include the power to award a lump sum.

In Sanders v. Sanders[ccxviii]¹² Barwick C.J. discussed the nature of the power in s. 86(1) during which[ccxix]¹³ “... settlements beyond the provision of mere maintenance or the determination and enforcement of rights, legal or equitable, in my opinion, can be made.”[ccxx]¹⁴

Dealing then with Mr. Griffin’s submission so far as it concerns immovable property, the first point is that the judgment itself is in money terms and is not directed at, nor related to, any specific property. I said earlier that the only assumptions I would be prepared to make in dealing with this submission would be those favourable to the respondent. In the absence of evidence I will only assume that the claim for settlement of property made in the divorce petition was not directed to any specific property at all, just as the resultant judgment itself was not. If the judgment had been so directed, no matter what was sought in the action, such a judgment would be caught by s. 5(3)(a) and could not be recognised.

In McCormac v. Gardner[ccxxi]¹⁵ Myers C.J. referred to the identical New Zealand equivalent of our s. 5(2)(b) and pointed out the distinction between actions where the whole subject matter of the action is land within the jurisdiction and those where a contract, obligation or liability affecting land or hereditaments within the jurisdiction is sought to be enforced. The judgment before the court in that case was given in the latter type of action and it was held that it was not within s. 5(2)(b) (of our Act).

The mere fact that divorce legislation gives one party to a marriage the right to make a claim for settlement of property against the other, and that other party happens to have assets which include immovable property, does not mean that the immovable property or any part of it is the subject matter of the claim unless the claim specifically seeks a settlement of it or any part of it.

Turning to the submission so far as it concerns movable property, firstly the action must be in rem and secondly movable property must be the subject matter of it. I will leave aside for a moment the fact that this judgment arose from a martimonial cause, decrees in which have long been regarded as the equivalent of judgments in rem because they affect the status of the parties.

Cheshire (op. cit.) at p. 84 says “In Roman law an action in rem was one brought in order to vindicate a jus in rem, i.e. a right such as ownership available against all persons, but the only action in rem known to English law is that which lies in an Admiralty court against a particular res, namely a ship or some other res, such as cargo, associated with the ship.” At p. 85 the author goes on to observe that a judgment in rem can flow from an action in personam and gives examples, e.g. divorce decrees, probate judgments establishing wills, certain orders in bankruptcy proceedings and an order for the dissolution of a company.

Dicey and Morris (op. cit.) at p. 1013 say “A judgment in rem is a judgment whereunder either (1) possession or property in a thing is adjudged to a person, or (2) the sale of a thing is decreed in satisfaction of a claim against the thing itself.” Adopting this interpretation for the purpose of the present proceedings, the subject judgment does not grant the wife ownership of any movable property nor does it order that any such property be sold in satisfaction of any claim against it. I make the same assumption here as in the case of immovable property, that the action was not directed against any specific property. It was an action in which the appellant’s ownership of both movable and immovable property was relevant but in neither case is there anything to suggest that the action was so directed.

Cheshire (op. cit.) at p. 643 distinguishes a judgment in rem from a judgment in personam in the following terms “A judgment in rem settles the destiny of the res itself and binds all persons claiming an interest in the property inconsistent with the judgment even though pronounced in their absence; a judgment in personam although it may concern a res, merely determines the rights of the litigants inter se to the res. The former looks beyond the individual rights of the parties, the latter is directed solely to those rights.” An order for the payment of money is simply not a judgment in rem.

It has long been understood in English law that a divorce or nullity decree stands on the same footing as a judgment in rem. See Bater v. Bater[ccxxii]¹⁶ and the well known case of Salvesen v. Administrator of Austrian Property[ccxxiii]¹⁷ where Viscount Dunedin said:

“A metaphysical idea, which is what the status of marriage is, is not strictly a res, but it, to borrow a phrase, savours of a res, and has all along been treated as such.”

The problem posed by this concept is whether a judgment such as the instant one, for settlement of property, is a judgment in rem because it is ancillary to a divorce decree? As I have already said that no movable property was the subject matter of the action it is perhaps unnecessary to decide. However, I am of the opinion that such a judgment is not a judgment in rem, but in personam, and as such it could not be within s. 5(2)(b) in any event. This view accords with criticism of the decision of Phillips v. Batho[ccxxiv]¹⁸ in Cheshire (op. cit.) at p. 647 and in Dicey and Morris (op. cit.) at p. 1005. In that case a damages award made by an Indian court against a co-respondent was enforced in England as a judgment “ancillary to a divorce decree” and therefore a judgment in rem, even though the co-respondent had left India prior to the suit commencing and did not submit to the jurisdiction. The decision was in my opinion wrong.

Even though I believe the subject order to be a judgment in personam, despite the fact that the jurisdiction to make it under the Australian legislation is based on jurisdiction to grant a divorce decree in the first place, it is still not a judgment in personam for the purposes of s. 5(2)(a) of our Act because of its exclusion by s. 1(2). It does not come within s. 5(2)(b) but it does come within s. 5(2)(c). This particular provision does not seem to have been discussed by the English authors but Professor Nygh (op. cit.) says this about it at p. 102:

“This obscurely worded clause means that judgments which fall outside the definition of judgments in personam, judgments concerning immovables, or judgments in rem concerning movables, are entitled to registration if the foreign court exercised a jurisdiction which would be entitled to recognition under the law of the forum apart from the Act. A judgment in personam or in rem which is not entitled to registration under the Act, does not come within this third category even though it would have been entitled to recognition at common law: Sharps Commercials Ltd. v. Gas Turbines Ltd.[ccxxv]¹⁹. Thus the third category would consist primarily of the matters expressly excluded in the Act from the term ‘action in personam’.”

I agree with this interpretation of s. 5(2)(c). The domicile requirements of the 1959 Australian Matrimonial Causes Act are virtually the same as those of this country and as the proceedings must have been so based, our National Court would certainly recognise the jurisdiction of the Queensland Supreme Court in the subject proceedings. Both parties appeared and were represented in those proceedings and there is no suggestion made before us that there is any reason at all why the jurisdiction of the original court should not be recognised. As the suit was not instituted under the Family Law Act 1975 (Aust.) it is unnecessary to consider to what extent the jurisdiction vested in the Family Law Court by s. 39 of that Act would be recognised in this country. Jurisdiction in divorce in recent years has been the subject of legislative change in many countries in the world, particularly where women are concerned, and law concerning recognition of divorce jurisdiction must be flexible enough to change with the times.

ANDREW J: I have read the judgments of the Chief Justice and my brother Pritchard and agree with their reasons and the orders they propose.

[ccvii]>Infra pp. 194-196.

[ccviii]Infra pp. 194-196.

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

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

[ccxi][1978] P.N.G.L.R. 398, at p. 403.

[ccxii][1978] HCA 8; (1978) 139 C.L.R 231, at p. 241; [1978] HCA 8; 52 A.L.J.R. 337, at p. 341.

[ccxiii][1892] UKLawRpAC 39; [1892] A.C. 473, at p. 480.

[ccxiv][1905] UKLawRpAC 67; [1906] A.C. 51, at p. 55.

[ccxv] [1920] A.C. 254, at p. 269.

[ccxvi][1966] 1 Q.B. 828.

[ccxvii][1966] 1 Q.B. 828.