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FICKLING v. COM. OF AUSTRALIA

October 4, 1991

JOHN FICKLING AND THE ESTATE OF FLORENCE FICKLING, DECEASED, PLAINTIFF,
v.
THE COMMONWEALTH OF AUSTRALIA, THE STATE OF VICTORIA, AND TONY LYONS, IN HIS OFFICIAL CAPACITY AS REGISTRAR OF TITLES, VICTORIAN GOVERNMENT, DEFENDANTS.



The opinion of the court was delivered by: Wexler, District Judge.

Plaintiffs John Fickling ("Fickling") and the Estate of Florence Fickling ("the estate") (collectively "plaintiffs") bring the above-referenced action against defendants the Commonwealth of Australia ("Australia"), the State of Victoria ("Victoria"), and Tony Lyons ("Lyons"), in his official capacity as Registrar of Titles of the Victorian Government (collectively "defendants"). Plaintiffs allege, inter alia, that defendants' acceptance of caveats on the property of a corporation controlled by Fickling constitutes a taking, nationalization, expropriation and/or seizure of plaintiffs' property without compensation and in violation of international law. Currently before this Court is defendants' motion to dismiss plaintiffs' claims pursuant to subsections (1), (2), and (6) of Rule 12(b) of the Federal Rules of Civil Procedure. In addition, defendants argue that the action is nonjusticiable under the Act of State doctrine. Finally, defendants seek attorney's fees under Rule 11 of the Federal Rules of Civil Procedure.

BACKGROUND

A. The Parties

Florence Fickling, the natural mother of Fickling, was a citizen of the United States residing in the County of Suffolk until she died intestate on June 22, 1980. Fickling was appointed administrator of his mother's estate on July 29, 1980, by decree of the Surrogate's Court of the County of Suffolk. Fickling, as administrator of the estate, has authorized the commencement of this action.

Australia is a "foreign state" as defined by the Foreign Sovereign Immunities Act ("FSIA" or "the Act"), 28 U.S.C. § 1602 et seq. Victoria is a political subdivision of Australia and a "foreign state" under the FSIA. § 1603(a). Lyons is an "agency or instrumentality" of Australia under the Act. § 1603(b). All three defendants have filed Affidavits of Nonwaiver of Foreign Sovereign Immunity.

B. The Underlying Events

Fickling and Carol are in the midst of a dissolution of their marriage before the Family Court of Australia ("Family Court"), a federal court having jurisdiction over that action. The Family Court's jurisdiction over Fickling is founded on the fact that the couple was domiciled in Australia prior to their separation in 1986. The events underlying the action before this Court stem from the divorce action, although plaintiffs contend that defendants' actions are unrelated to the "administering and enforcing [of] Australia's domestic relations and real property laws." Affidavit of Fickling at 2.

Plaintiffs claim to be the majority shareholders in Johned Investments Propriety Limited ("Johned"), an investment banking corporation created under the laws of Victoria. It is plaintiffs' contention that they were induced into investing United States currency in Johned by Australia's guarantee that the monies infused could be repatriated at any time. Complaint at 8.

Plaintiffs allege that Carol has caused caveats to be lodged by Lyons on the freehold properties of Johned. A caveat "precludes the sale, transfer, hypothecation, mortgage, pledge, etc., [sic] of the real property upon which the Caveat is lodged." Complaint at 7. According to plaintiffs, these caveats constitute the taking of Johned's property without compensation and in violation of international law.

Johned, which is controlled by Fickling, claims to have made numerous attempts to retain commercial counsel to commence caveat removal proceedings. Plaintiffs contend that the attempts to retain counsel to represent Johned in those proceedings have been unsuccessful. Plaintiffs proffer that the attorneys they have attempted to retain conjecture that any such proceedings would be an "exercise in futility" because that action's inevitable transfer from an Australian state court to the Family Court would result in a denial of the "request for Caveat removal and the enjoin[ing of] Johned from making any further applications for such relief." Id. at 10-11. Plaintiffs premise this on the fact that section 78 of the Australian Family Court Act of 1975 authorizes the Family Court to decide matters concerning title or rights to property that a party has with respect to that property. In fact, subsequent to the filing of the complaint, Johned commenced, on April 6, 1990, a caveat removal proceeding in the Supreme Court of Victoria at Melbourne, Australia. That proceeding was ultimately transferred to the Family Court where it is now pending. Affidavit of Fickling at 4.

Plaintiffs allege that Fickling has been threatened with arrest in Australia and otherwise harassed by the Australian government and courts. Plaintiffs contend that the purpose of the caveats is to ensure that Fickling will succumb to Carol's "unreasonable, arbitrary, [and] capricious" marital and financial demands which are "without basis in law and in fact." Complaint at 12.

As noted, plaintiffs allege that the acceptance of the caveats by Lyons on behalf of Victoria constitutes a taking, nationalization, expropriation and/or seizure without compensation of Johned's property. Plaintiffs further allege that defendants, by their combined efforts, have conspired to aid Carol in her attempt to cause Fickling to yield to her demands. Plaintiffs contend that it is "defendants' practice and procedure to cause the insolvency bankruptcy of non-citizen parties" before the Family Court. Plaintiffs also contend that defendants' actions represent a breach of Australia's promise that plaintiffs would have the right to repatriate their foreign investment. Finally, plaintiffs allege that ...


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