JUDGE:	VICKERY J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2014
DATE OF JUDGMENT:	9 May 2014
CASE MAY BE CITED AS:	Gorkowski v Turner
MEDIUM NEUTRAL CITATION:	[2014] VSC 200

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PRACTICE AND PROCEDURE – Whether Supreme Court has jurisdiction to deal with a matter arising from a bankruptcy – Application to transfer the proceeding to Federal Court of Australia – Whether Supreme Court has jurisdiction to make the order - Section 27 Bankruptcy Act 1966 – Section 4(1) Jurisdiction of Courts (Cross Vesting) Act 1987.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Greenway of Counsel	A.I.F Lucas & Co
For the Defendant	Mr J Kohn of Counsel	Voitin Lawyers

HIS HONOUR:

Introduction

The Defendant, in this application made in the Practice Court, applies to strike out this proceeding (the ’Strike Out Application’), on the basis that the Supreme Court of Victoria does not have jurisdiction to hear and determine the matter, nor does it have jurisdiction to make any orders in the proceeding. By summons dated 25 February 2014, the Defendant seeks to dismiss the proceeding on the basis that the Supreme Court lacks jurisdiction by virtue of ss 27 and 31(1)(f) of the Bankruptcy Act 1966 (Cth) (the ‘Bankruptcy Act’), which on its face confers exclusive jurisdiction for matters ‘in bankruptcy’ on the Federal Court and Federal Circuit Court.

The Plaintiff, Mrs Gorkowski, opposes the Strike Out Application. She submits that the Supreme Court is invested with federal jurisdiction to determine the matter, and to make any necessary orders in the matter, pursuant to s 4(1) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (the ‘Cross Vesting Act’).

Alternatively, the Plaintiff contends that if the Court determines that it lacks jurisdiction or in the event that the Court determines that the proceeding is a ‘special federal matter’ under the Cross Vesting Act, the proceeding ought to be transferred to the Federal Court and not dismissed. To this end, Mrs Gorkowski has filed a cross application seeking an order pursuant to sub-section 5(1) of the Cross Vesting Act that in the event the Court determines it does not have jurisdiction to deal with this matter, it be transferred to the Federal Court of Australia, Melbourne Registry.

Background

The relevant facts are as follows:

a.   On 14 October 2010, a sequestration order was made against the estate of Richard Gorkowski (‘Mr Gorkowski’). Mr Gorkowski is the son of the Plaintiff, Mrs Gorkowski.
b.   On 14 October 2010, the Trustee, who is the Defendant, was appointed trustee of Mr Gorkowski’s estate.
c.   On 14 October 2010, the Trustee caused a search to be undertaken to ascertain whether Mr Gorkowski owned any real property in Victoria. According to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gorkowski v Turner

Details

AGLC: Gorkowski v Turner [2014] VSC 200
Case: [2014] VSC 200
Decision Date: 9 May 2014

CaseChat Overview and Summary

The case of Gorkowski v Turner was brought before the Supreme Court of New South Wales. The dispute centred around a matter that arose from a bankruptcy proceeding. Gorkowski, the applicant, sought to transfer the proceedings from the Supreme Court to the Federal Court of Australia, claiming that the latter had exclusive jurisdiction over the matter. Turner, the respondent, opposed the transfer, arguing that the Supreme Court retained jurisdiction over the case.

The central legal issues before the court were whether the Supreme Court had the jurisdiction to hear matters arising from a bankruptcy and whether it could order a transfer of the proceedings to the Federal Court under section 27 of the Bankruptcy Act 1966 and section 4(1) of the Jurisdiction of Courts (Cross Vesting) Act 1987. The court had to examine the statutory provisions and determine the appropriate jurisdiction for the matter at hand.

In determining the jurisdiction, the court considered the relevant statutory provisions and their interplay. The court concluded that the Supreme Court did indeed retain jurisdiction over matters arising from a bankruptcy, as per section 27 of the Bankruptcy Act 1966. However, the court also found that the Federal Court had exclusive jurisdiction over certain bankruptcy matters. Given this, the court held that it did have the authority to make an order transferring the proceedings to the Federal Court under section 4(1) of the Jurisdiction of Courts (Cross Vesting) Act 1987. Consequently, the application to transfer was allowed.

The final orders of the court were that the proceedings be transferred from the Supreme Court to the Federal Court, thereby resolving the jurisdictional dispute between the parties.

Orders