Pak Anors v Protected Person and MOM - [2022] SASC 81

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF A PROTECTED PERSON
[2022] SASC 81
Judgment of the Honourable Auxiliary Justice Bochner
4 August 2022
COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - WHERE APPROPRIATE AND IN INTERESTS OF JUSTICE
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
Family Law Act 1975 (Cth) s 79, s 75(2); Wills Act 1936 (SA) s 7; Inheritance (Family Provision) Act 1972 (SA); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) s 5(1); Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(1), referred to.
Re Liu; Yan v Kong [2020] SASC 143; BHP Billiton Ltd v Schultz [2004] HCA 61, considered.

IN THE ESTATE OF A PROTECTED PERSON
[2022] SASC 81

The second respondent has, by FDN 38, sought orders to have this matter transferred to the Federal Circuit and Family Court of Australia (“FCFCOA”), so that it may be heard concurrently with an action instituted by the applicants in Division 2 of that Court. In the alternative, he seeks an order vacating the trial of this matter and for it to be listed for trial after the finalisation of the action in the FCFCOA. In the third alternative, he asks that this action be stayed until the conclusion of the action in the FCFCOA. These are my reasons for dismissing each of those applications.
Background
Out of an abundance of caution and to protect the privacy of the parties, I will refer to the parties in the following way:
·I will refer to the applicants as the applicants;
·I will refer to the second respondent as the respondent; and
·I will refer to the first respondent as the protected person.
The respondent and the protected person were married in 2004; it was the second marriage for each of them.[1] The applicants are the children of the protected person and her first husband. At the time that this action was commenced, the respondent was 77 years old and the protected person was 74 years old. An independent lawyer has been appointed the protected person’s litigation guardian.
[1] FDN 39, MM-3, 5.
In setting out a brief summary of the background to this application, I make no findings of fact. I accept that the respondent may not accept as fact all of the matters that I enumerate below; I set them out only to provide context for these reasons. I accept that at the trial of this matter, the parties will have the opportunity to challenge the affidavit evidence given by each of them, which may lead to findings of fact which differ to the background that I describe now.
It is the evidence of the applicants that the protected person began exhibiting signs of dementia many years before a formal diagnosis of Alzheimer’s Disease was made in 2014.[2] While the onset of her disease was…

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: [2022] SASC 81
Decision Date: 4 August 2022

CaseChat Overview and Summary

The case of Pak Anors v Protected Person and MOM involved the second respondent seeking orders to have the matter transferred to the Federal Circuit and Family Court of Australia (FCFCOA) to be heard concurrently with another action. The respondents were married in 2004, and the protected person, the wife, was diagnosed with Alzheimer’s Disease in 2014. The applicants, the children of the protected person and her first husband, raised concerns about the care she was receiving from the respondent. The protected person was eventually placed in a nursing home due to her severe dementia and the alleged physical assault by the respondent. The applicants sought orders to have the wills action stayed or transferred to the FCFCOA.

The legal issues before the court were whether the interests of justice required the transfer of the wills action and whether the Supreme Court should stay the action until the finalisation of the action in the FCFCOA. The court considered the relevant provisions of the Cross Vesting Act and the interests of justice in determining the appropriate forum for the proceedings. The court found that the interests of justice did not require the transfer of the wills action and dismissed the applications.

The court reasoned that the Cross Vesting Act required the court to ensure that cases were heard in the forum dictated by the interests of justice. The court noted that the interests of justice were not necessarily the same as the interests of any one party. The court also considered the ordinary exercise of jurisdiction, the court's familiarity with the applicable body of law, and the appropriateness of the court considering the application, interpretation or validity of a law of the Commonwealth. The court concluded that the Supreme Court was the more appropriate forum upon a fair balancing of all the factors defining the relevant "interests of justice."

The court dismissed the applications and made no orders. The wills action would continue to be heard in the Supreme Court.

Orders

Orders of the court

PAK ANORS v PROTECTED PERSON MOM

Background

Background to the litigation

The second respondent has, by FDN 38, sought orders to have this matter transferred to the Federal Circuit and Family Court of Australia (“FCFCOA”), so that it may be heard concurrently with an action instituted by the applicants in Division 2 of that Court. In the alternative, he seeks an order vacating the trial of this matter and for it to be listed for trial after the finalisation of the action in the FCFCOA. In the third alternative, he asks that this action be stayed until the conclusion of the action in the FCFCOA. These are my reasons for dismissing each of those applications. Background Out of an abundance of caution and to protect the privacy of the parties, I will refer to the parties in the following way:·I will refer to the applicants as the applicants;·I will refer to the second respondent as the respondent; and·I will refer to the first respondent as the protected person. The respondent and the protected person were married in 2004; it was the second marriage for each of them.[1] The applicants are the children of the protected person and her first husband. At the time that this action was commenced, the respondent was 77 years old and the protected person was 74 years old. An independent lawyer has been appointed the protected person’s litigation guardian.[1] FDN 39, MM-3, 5. In setting out a brief summary of the background to this application, I make no findings of fact. I accept that the respondent may not accept as fact all of the matters that I enumerate below; I set them out only to provide context for these reasons. I accept that at the trial of this matter, the parties will have the opportunity to challenge the affidavit evidence given by each of them, which may lead to findings of fact which differ to the background that I describe now. It is the evidence of the applicants that the protected person began exhibiting signs of dementia many years before a formal diagnosis of Alzheimer’s Disease was made in 2014.[2] While the onset of her disease was relatively gradual, it appears to have progressed rapidly in the last several years. By about 2014, the protected person required assistance with dressing and personal hygiene,[3] by 2018, her daughter was concerned about her being left at home alone,[4] and by about 2018, she was having episodes of incontinence.[5] Until September 2021, she remained living in the home that she shared with the respondent (“the matrimonial home”); he was her sole carer. It is the evidence of the applicants that for a number of years prior to her taking up residence in a nursing home, they had raised concerns about the care that she was receiving from the respondent.[6] The evidence is that she now has severe dementia, is at risk of falls and suffers seizures.[7][2] See, for example, FDN 12, [25] – [32], FDN 40, MHD-09, [[9] – [22] and FDN 45, [13] – [22].[3] FDN 45, [9].[4] Ibid, [32] – [36].[5] Ibid, [39].[6] Ibid, [46] – [47].[7] FDN 3, MHD-02. In October 2020, the respondent was accused of physically assaulting the protected person. He was charged with aggravated assault and he pleaded guilty to that charge in June 2021. After they became aware of the assault, the applicants applied to the South Australian Civil and Administrative Tribunal for orders appointing them the full administrators of her estate and as her substitute decision makers. They arranged for the protected person to be removed from the home she shared with the respondent and placed in a nursing home in a unit specifically for caring for people with dementia. That is where she currently resides.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The respondent indicates that he will agree to an expedited hearing in the FCFCOA in the event that the wills action is stayed or transferred. Consideration I say at the outset that I do not consider that the applicants’ jurisdictional objection has any merit. In the event that a finding was made that the interests of justice required transfer of the wills action, I am satisfied that transfer of the FLA action to Division 1 of the FCFCOA would be facilitated. In so far as it is relevant to this action, s 5 of the Cross Vesting Act provides:5—Transfer of proceedings(1) Where:(a) a proceeding (in this subsection referred to as the "relevant proceeding ) is pending in the Supreme Court; and(b) —(ii) it appears to the Supreme Court that having regard to—(A)whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court; and(B)the extent to which, in the opinion of the Supreme 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 Commonwealth and not within the jurisdiction of the Supreme 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 Federal Court or the Family Court, as the case may be,the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be. After examining a number of authorities in respect of cross vesting legislation in various States and the Commonwealth, Hinton J said this about s 5(1):These observations apply equally to s 5(1) of the Cross-vesting Act. In Cini v Pets Paradise Franchising (SA) Pty Ltd Bleby J distilled the following propositions from BHP Billiton Ltd v Shultz:·It is not relevant to ask whether this Court is justified in refusing to exercise the jurisdiction conferred on it. Rather, it must ensure that the case is heard in the forum dictated by the interests of justice.·The question is not whether this Court is an inappropriate forum. It is both necessary and sufficient that, in the interests of justice, the other court is more appropriate.·The court is required to ensure that cases are heard in the forum dictated by the interests of justice. It is not a question of the exercise of a discretion.·The interests of justice are not necessarily the same as the interests of any one party.·Because it is necessary to identify the more appropriate forum, no specific emphasis can be given in favour of the choice of forum made by the plaintiff.·It is inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.Further, here, bearing in mind my conclusion that M’s application is a matrimonial cause within the meaning of the FLA, sub-subparagraphs (A) and (B) of s 5(1)(b)(ii) of the Cross-vesting Act require that consideration be given to which court ordinarily exercises the jurisdiction subject of the proceeding, to this Court’s familiarity with the applicable body of law, and to the appropriateness of this Court considering the application, interpretation or validity of a law of the Commonwealth in a proceeding in relation to which it would not have jurisdiction but for the Cross-vesting Act. The ultimate question is, however, which is the more appropriate forum upon a fair balancing of all the factors defining the relevant “interests of justice”.[14](footnotes omitted) [14] M v L [2017] SASC 39, [74] – [75].