Hackett v Hackett - [2010] SASC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Civil)
HACKETT v HACKETT & ANOR
[2010] SASC 32
Judgment of The Honourable Justice Gray
22 February 2010
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - WHERE APPROPRIATE AND IN INTERESTS OF JUSTICE - GENERALLY
Application to transfer proceedings to Supreme Court of New South Wales pursuant to cross-vesting legislation - whether New South Wales proceeding a related proceeding - whether transfer to New South Wales in interests of justice.
Held: application granted - South Australian proceeding related to New South Wales proceeding - transfer of proceedings in the interests of justice - appropriate to make cross-vesting order.
Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA) s 5, referred to.
BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Cini v Pets Paradise Franchising (SA) Pty Ltd (2008) 102 SASR 177; Australian Rail Track Corp Ltd v Mineral Commodities Ltd [2006] SASC 27; Dawson & Baker (1994) 120 ACTR 11, considered.

HACKETT v HACKETT & ANOR
[2010] SASC 32
CIVIL
GRAY J.

This is an application for the cross-vesting of the within proceedings to the Supreme Court of New South Wales. On 18 February 2010 I made a cross‑vesting order. I now publish my reasons for that order.
Before addressing the evidence adduced in support of the application it is convenient to identify the statutory powers to cross-vest and to set out the principles developed in a number of authorities in relation to these powers.
The statutory scheme
Section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA) relevantly provides:
(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…

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.

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Details

Case: [2010] SASC 32
Decision Date: 22 February 2010

CaseChat Overview and Summary

In the case of Hackett v Hackett, the applicant sought a transfer of proceedings from the South Australian Supreme Court to the Supreme Court of New South Wales. The dispute involved family property and inheritance, with the applicant, Johnjames Hackett, claiming an agreement for the transfer of property from his father, Dr Hackett. The matter was heard by Justice Blue in the South Australian Supreme Court, who considered the application under cross-vesting legislation.

The central legal issue before the court was whether the South Australian proceedings were related to the New South Wales proceedings, and whether transferring the case to New South Wales was in the interests of justice. The court had to determine if the evidence and family relationships, as well as the conduct of the parties, warranted a single judge hearing all the disputes simultaneously to ensure a fair resolution. The court also needed to consider the relevance of a letter that was said to form the agreement and its implications for both proceedings.

Justice Blue found that the South Australian and New South Wales proceedings were related, as they involved the same family relationships and property transactions. The court observed that the agreement and conduct in the South Australian proceedings were inconsistent with the conduct alleged in New South Wales. The possibility of estoppel pleas in the South Australian proceedings further supported the argument for a single judge to oversee all disputes. The letter, which detailed an agreement for property transfers, raised significant questions relevant to both proceedings, including the consistency of family arrangements, authorship of the letter, and the intentions of the parties involved. Consequently, the court concluded that transferring the case to New South Wales was in the interests of justice.

The final orders included the transfer of the South Australian proceedings to the Supreme Court of New South Wales, allowing for a consolidated hearing of all related disputes to ensure a fair and comprehensive resolution.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

There is no direct evidence before the Court as to Dr Hackett’s mental state in 1998 when the discussions regarding the Norton Summit property occurred with Johnjames, if those discussions occurred at all. Similarly, there is no direct evidence as to Dr Hackett’s mental state at the time of the alleged conversations with Jane in relation to the properties. Consideration of the application In my view the relevant proceedings and the New South Wales proceedings are related. To achieve justice in the resolution of the proceedings in South Australia or the proceedings in New South Wales will require the trial Judge to having a clear understanding of the family relationships as evidenced by the discussions that have taken place over a period of many years. The conduct of Dr Hackett as alleged in the New South Wales proceedings, is conduct that is inconsistent with the claim being pursued by Johnjames in South Australia. The agreement alleged by Johnjames, and the conduct at the time of that agreement, is inconsistent with Dr Hackett’s alleged conduct in discussing the transfer of the Norton Summit property with Jane some years later. As pleas for estoppel may be advanced by Johnjames in the relevant proceedings, the case for the one judge hearing all disputes at the one time becomes a powerful consideration with respect to the fair disposal of the proceedings. Following the hearing of the application and the production of a copy of the letter said to form the agreement and to be the basis of Johnjames’ entitlement, counsel for Dr Hackett and Karin sought leave to make further submissions addressing the letter and its relevance to the cross-vesting application. It was said that the letter raised significant questions relevant to the New South Wales proceedings, including: whether the agreement evidences a consistent mode of dealing in which non-binding family arrangements were discussed; whether Dr Hackett was the true author of the letter; the relevant knowledge and intentions of Jane and her husband; whether the agreement is a tripartite agreement between Susan, Johnjames and Dr Hackett or possibly additional parties, and; whether the letter supports Jane’s contention that the Norton Summit property was intended to be transferred to her. Written submissions in response were also filed by counsel for Johnjames denying that the letter raises any relevant questions in relation to the New South Wales proceedings. The letter forming the basis of the South Australian proceeding provides:Dear Johnjames,During your absence in Oz we Connemara Hacketts, led by our Leader, Jon, have thought up a Devilish Plan.When I return to Sydney I will make over Norton Summit to you provided that you make over the Edgecliff flat to Susan who provided you have done that will make over her savings to reduce the debt on Norton Summit to a level which Jon and I together with everyone over the next couple of years ought to be able to get more under control because he has now much reduced the mortgage on Cloonderowen.This Devilish Plan should relieve you or anyone else of having to adopt any other Devilish Plan such as marrying a Rich Person or anyone else for that matter. Love to Rupert and to yourself.from Earle& Jane & Susan& JonThe terms of this letter confirm, in my view, that the issues in the relevant proceeding are related to the issues arising in the New South Wales proceeding.