Bozkurt v Bozkurt
[2014] SASC 118
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
BOZKURT v BOZKURT
[2014] SASC 118
Judgment of The Honourable Justice Gray
25 August 2014
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION
Application to cross-vest proceeding to Supreme Court of Western Australia. Plaintiff was injured in motor vehicle accident and now resides in Western Australia. Plaintiff incapable of managing her own affairs and seeks an order appointing Public Trustee (WA) as manager of her estate. Public Trustee (WA) would only accept the appointment under Western Australian law.
Whether the matter is a relevant proceeding within the meaning of the cross-vesting legislation. Whether it is in the interests of justice to cross-vest the matter to the Supreme Court of Western Australia.
Held (granting the application):
1. The matter is a relevant proceeding within the meaning of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) and the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA).
2. As the plaintiff is resident in Western Australia, the most sensible course is for a manager based in Western Australia to be appointed to manage the plaintiff’s award of damages.
3. In these circumstances, the appropriate court to supervise the management of the plaintiff’s funds is the Supreme Court of Western Australia. It is therefore in the interests of justice to transfer the proceeding to the Supreme Court of Western Australia.
Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) s 5; Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 5; Aged and Infirm Persons Property Act 1940 (SA); District Court Act 1991 (SA) s 24, referred to.
BOZKURT v BOZKURT
[2014] SASC 118Civil
GRAY J.
This is an application to cross-vest a proceeding to the Supreme Court of Western Australia.
Background
At approximately 8.30pm on 19 December 2003, the plaintiff and applicant, Ayse Bozkurt, was the passenger in a car being driven by the defendant and respondent, Cuma Bozkurt, her former husband, on the Sturt Highway near the Cadney Park Homestead in Marla. The car collided with an errant cow. The plaintiff alleged that the collision occurred as a result of the defendant’s negligence. As a result of the collision, the plaintiff suffered physical, psychiatric and cognitive injuries. The plaintiff is not competent to instruct her solicitors or make decisions in her own best interests. Accordingly, on 20 December 2011, the plaintiff’s son, Nahsen Bozkurt, was appointed as her litigation guardian.
On 6 August 2014, the District Court of South Australia approved a compromise reached between the parties and ordered that judgment be entered in favour of the plaintiff in the sum of $270,000.00, inclusive of interest, in addition to amounts already paid. A further sum of $62,000.00 was awarded to the plaintiff in respect of costs and disbursements, with an additional amount to be paid in respect of the costs of applying for a protection order and the appointment of a manager.
On 8 August 2014, the plaintiff filed an interlocutory application seeking, inter alia, that the Public Trustee of Western Australia be appointed manager and trustee in respect of the balance of the settlement funds, pursuant to the Aged and Infirm Persons Property Act 1940 (SA). The plaintiff sought this order as she is now resident in Western Australia and private trustee companies were deemed unsuitable managers having regard to the small settlement sum. The Public Trustee of Western Australia has agreed in writing to accept the appointment on the condition that it performs its duties subject to Western Australian law, under the jurisdiction of Western Australian courts. The application was not opposed.
The matter has been transferred to this Court, pursuant to section 24 of the District Court Act 1991 (SA), to enable the bringing of a cross-vesting application.
The Application
Section 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) relevantly provides:
Transfer of proceedings
...
(2) Where—
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court); and
(b) —
(i)it appears to the first court that the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or
(ii) it appears to the first court that having regard to—
(A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; and
(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in subsubparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and
(C) the interests of justice,
it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or
(iii) it appears to the first court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,
the first court shall transfer the relevant proceeding to that other Supreme Court.
...
(7) A court may transfer a proceeding under this section on the application of a party to the proceeding, on its own initiative or on the application of the Attorney-General of the Commonwealth or of a State or Territory.
(9) Nothing in this section confers on a court jurisdiction that the court would not otherwise have.
The Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) reflects the South Australian Act. Section 5 relevantly provides:
Transfer of proceedings
...
(3) Where —
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of another State or of a Territory (in this subsection referred to as the first court); and
(b) it appears to the first court that —
(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of Western Australia and it is more appropriate that the relevant proceeding be determined by the Supreme Court of Western Australia;
(ii) having regard to —
(A) whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of Western Australia;
(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and
(C) the interests of justice,
it is more appropriate that the relevant proceeding be determined by the Supreme Court of Western Australia; or
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of Western Australia,
the first court shall transfer the relevant proceeding to the Supreme Court of Western Australia.
...
(8) A court may transfer a proceeding under this section on the application of a party to the proceeding, of its own motion or on the application of the Attorney-General of the Commonwealth or of a State or Territory.
...
(10) Nothing in this section confers on a court jurisdiction that the court would not otherwise have.
Following the order transferring the within proceeding to this Court from the District Court, this matter is a relevant proceeding within the meaning of sections 5(2)(a) and 5(3)(a) of the South Australian and Western Australian legislation, respectively.
In my view, it is in the interests of justice to transfer the matter to the Supreme Court of Western Australia pursuant to sections 5(2)(b)(iii) and 5(3)(b)(iii) of the South Australian and Western Australian legislation, respectively. The plaintiff is resident in Western Australia and appears incapable of managing her own affairs. The most sensible course is for a manager based in Western Australia to be appointed to manage the plaintiff’s award of damages. As noted earlier in these reasons, the Public Trustee of Western Australia has consented to act. In these circumstances, the appropriate court to supervise the management of the plaintiff’s funds is the Supreme Court of Western Australia. There is no dispute as to the jurisdiction of the Supreme Court of Western Australia to hear the matter and make the required orders concerning the appointment of a manager over the plaintiff’s assets.[1] Once the proceeding is transferred to the Supreme Court of Western Australia, that Court can then proceed to make the appropriate orders to appoint a manager over the plaintiff’s assets.
[1] It is to be noted that the appointment of the Public Trustee of Western Australia would be pursuant to the relevant Western Australian legislation, not the Aged and Infirm Persons Property Act 1940 (SA).
Conclusion
I grant the application to cross-vest the proceeding to the Supreme Court of Western Australia.
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