Van Der Kreek v Van Der Kreek

• Jurisdiction: Papua New Guinea
• Judge: Andrew J:
• Judgment Date: 06 July 1979
• Citation: [1979] PNGLR 185
• Court: Supreme Court
• Year: 1979
• Judgement Number: SC153

Supreme Court: Prentice CJ, Pritchard J, Andrew J

Judgment Delivered: 6 July 1979

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

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

V

VAN DER KREEK

Waigani

Prentice CJ Pritchard Andrew JJ

29-30 March 1979

6 July 1979

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 5Infra pp. 194-196.1.

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. 5Infra pp. 194-196.2.

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.

Held

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

(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.

Connecticut Fire Insurance Co. v. Kavanagh, [1892] A.C. 473, at p. 480;

Evan G. Sutherland v. S. C. Thomson, [1906] A.C. 51;

North Staffordshire Railway Co. v. Edge, [1920] A.C. 254;

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

(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.

(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.

Ex parte Van der Kreek; Re Van der Kreek, [1978] P.N.G.L.R. 398, approved.

(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.

(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.

(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.

(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.

McCormac v. Gardner, [1937] N.Z.L.R. 517, at p. 519, considered.

(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.

(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.

(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.

Phillips v. Batho, [1913] 1 K.B. 251, approved;

Cheshire on Private International Law (9th ed., 1974), p. 667, and

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

(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.

(13) Accordingly, the appeal should be dismissed.

Appeal

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.).

Counsel

J. A. Griffin, for the appellant.

I. Molloy, for the respondent.

Cur. adv. vult.

6 July 1979

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)...