Property – High Court sets aside stay order – Full Court misapplied res judicata and Anshun estoppel

In Clayton v Bant [2020] HCA 44 (2 December 2020) the High Court (Keifel CJ, Bell, Gageler, Gordon & Edelman JJ) allowed with costs an appeal where the Full Court permanently stayed a wife’s application for property and spousal maintenance as she had failed to contest divorce proceedings in Dubai.

A citizen of the United Arab Emirates, the husband issued divorce proceedings in Dubai in 2014. The wife did not appear, such that a Dubai court granted the husband an “irrevocable fault based divorce” ([8]) and ordered the wife to repay an amount of an advanced dowry and costs.

The husband then sought a permanent stay of the wife’s property and spousal maintenance proceedings in the Family Court of Australia, arguing res judicata. Although unsuccessful at first instance, the Full Court stayed the proceedings, finding that the Dubai proceedings had determined the same cause of action and the wife’s failure to pursue her claim in Dubai meant she was estopped from pursing a spousal maintenance claim in the Family Court.

The majority of the High Court (Kiefel CJ, Bell and Gageler JJ) said (at [26]):

“Once it is appreciated that the rights in issue in the property settlement proceedings and in the spousal maintenance proceedings are the statutory rights of the wife to seek orders under ss79(1) and 74(1) of the Act, it is apparent that the ruling made by the Dubai Court cannot give rise to a res judicata in the strict sense in which that term continues to be used in Australia. The rights created by ss79(1) and 74(1) cannot ‘merge’ in any judicial orders other than final orders of a court having jurisdiction under the … The rights of the wife to seek orders under ss79(1) and 74(1) continue to have separate existence unless and until the powers to make those orders are exercised on a final basis and thereby exhausted.”

(See Does what happens in Dubai stay in Dubai? on QLS Proctor)

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

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