WA Case Notes

By Dianne Caruso Senior Associate, HHG Legal Group

Middendorp v Lygina [2021] WASC 409

In Middendorp v Lygina the Supreme Court considered the defendant’s application to set aside the plaintiff’s writ of summons or alternatively, to transfer the proceedings to the Family Court of WA. The plaintiff sought in his writ to permanently restrain the defendant from adducing certain documents, or evidence of their content, in any proceedings as he claimed they were confidential and covered by legal professional privilege. The documents the subject of the plaintiff’s claim included draft Minutes of Consent Orders received by the plaintiff from his family lawyer with respect to Family Court proceedings and notes made by the plaintiff regarding a meeting with his family lawyer. The defendant argued that the plaintiff’s claim fell within the exclusive jurisdiction of the Family Court or alternatively, that it be transferred to the Family Court under cross vesting legislation. The Supreme Court dismissed the defendant’s application, made an order for costs and programmed the matter to an expedited trial to hear the plaintiff’s claim.

Background and procedural history

The plaintiff made an application to the Supreme Court of WA to restrain the defendant from seeking to adduce certain documents or evidence of their content in any proceedings on the basis the information contained therein was confidential and protected by legal professional privilege. The documents the subject of the plaintiff’s claim included: 1. Draft Minutes of Proposed Consent

Orders to be made in the Family Court which had been sent to him by his lawyer; and 2. Notes made by the plaintiff in a bound notebook for the purposes of a meeting with his lawyer as well as notes made by him during the meeting with his lawyer regarding matters discussed during the meeting. The parties had been in a de facto relationship which had ended. There was a child of that relationship that was aged 5. There were proceedings on foot in the Family Court of Western Australia in respect of both financial and parenting matters. There were also proceedings on foot in the Magistrates Court of Western Australia in relation to an interim violence restraining order in force protecting the defendant against the plaintiff. A final hearing had been listed in the Magistrates Court in early December 2021. The defendant’s application to the Supreme Court was heard on 5 November 2021. The matter required urgent consideration in light of the final hearing listed in the Magistrates Court and the relevance of the plaintiff’s application to that final hearing. The reasons for decision of the Supreme Court in respect of the defendant’s application were delivered on 9 November 2021 and published on 23 November 2021.

The parties’ positions

The defendant sought that the plaintiff’s writ of summons be set aside on the basis that the Supreme Court lacked jurisdiction and the plaintiff’s claim fell within the exclusive jurisdiction of the Family Court of WA. Alternatively, the defendant sought, that if the Supreme Court had jurisdiction, that the Supreme Court proceedings be transferred to the Family Court of WA under cross vesting legislation. The plaintiff’s position was the Supreme Court did have jurisdiction to determine his claim and he opposed the transfer of the proceedings to the Family Court. However, if the Court found it did not have jurisdiction, then rather than set it aside, he sought the Court transfer the Supreme Court proceedings to the Family Court.

Consideration of sections of the Family Court Act 1997 as to jurisdiction

It was common ground between the parties that the Family Court of WA is a State Court and as the parties were in a de facto relationship, the Court was exercising its non federal jurisdiction. Further, it was common ground that the Family Court of WA’s non federal jurisdiction was exclusive of any other Court as provided under section 39 of the Family Court Act 1997 (WA) (“the Act”). The parties disputed however whether the plaintiff’s claim was within the jurisdiction of the Family Court when exercising its non federal jurisdiction. The parties referred the Court to the following sections of the Act: 1. Section 36: Non-federal jurisdictions of

the Court; 2. Section 37(2): Principles to be applied and matters to be considered by Court in its non-federal jurisdiction; 3. Section 66A: Child’s best interests paramount consideration in making parenting order; 4. Section 184: Certain proceedings to be instituted only under this Act; 5. Section 202B: Principles for conducting child related proceedings; 6. Section 202C: This Division also applies to proceedings in chambers 7. Section 202F: Power to make determinations, findings and orders at any stage of proceedings; 8. Section 202H: Rules of evidence not to apply unless Court decides; 9. Section 202V: Right to certain civil proceedings limited; 10. Section 205ZA: Declaration of interests in property; 11. Section 205ZG: Alteration of property interests; 12. Section 235: Injunctions (in relation to a child); and 13. Section 235A: Injunctions relating to de facto relationships.

Findings of the Court

In regards to the jurisdiction of the Family Court, the Supreme Court held:

The Family Court of WA is a statutory court however the plaintiff’s claim was in equity.

Although the Family Court has an implied power to make orders to prevent its processes being abused and to protect the integrity of its processes, this power does not depend on it having an equitable jurisdiction.

The plaintiff seeks the defendant be permanently restrained from divulging the information in all contexts, including the Magistrates Court. The implied powers of the Family Court cannot be invoked in the Family Court to grant him the relief he is seeking in the Supreme Court.

Although the Family Court has the power to grant injunctions under sections 235 and 235A of the Act, it would be an unnatural construction to conclude that the plaintiff’s claim in the