Before the Court is a summons filed on 21 March 2016 by the plaintiff Ms AK. By that summons, Ms AK moves the Court to allow proceedings currently before the District Court to be transferred to the Supreme Court for hearing, with the relief to be claimed in the Supreme Court to mirror that previously claimed in the District Court.
The defendants, who are represented, each oppose the relief sought by the plaintiff.
On 19 February 2016 the plaintiff filed an amended statement of claim in the District Court, which names FanFan Zhang as first defendant, Fairfax Media Publications as second defendant, and Easy Markets Pty Ltd, the employer of the first defendant, as third defendant.
In the District Court, there are claims for defamation and injurious falsehood, and I am advised that those proceedings have already been joined in the District Court and are currently listed before that Court on 28 April 2016. They are in the defamation list of the District Court and are currently the subject of management and directions hearings in that Court. Further orders for the management of the proceedings are to be made, subject to any order from this Court ordering a transfer of the claim to the Supreme Court.
In support of the application for transfer, the plaintiff seeks to read and rely upon her affidavit of 21 March 2016. There is no objection to that affidavit for present purposes. In her affidavit the plaintiff notes that she has a defamation action filed in the District Court and, further, a claim for injurious falsehood in the same Court. She deposes in her affidavit that, having regard to the injurious falsehood claim, it being additional to the claim in defamation, and noting the complexities of the injurious falsehood claim, she feels that the Supreme Court is the more appropriate jurisdiction in which her matter should be heard. It is on that basis that she asks for transfer of the proceedings.
The relevant power is found at s 140 of the Civil Procedure Act 2005 (NSW). Section 140(1) relevantly provides that:
"Section 140:
(1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court."
The power conferred by s 140(1) of the Civil Procedure Act is a very wide one. Obviously, the ultimate consideration is the interests of justice and what is necessary to achieve the interests of justice. That phrase itself imports a wide range of notions, including cost and expedition, the quick, just and cost-effective disposal of matters being one of the other overriding aims, if not indeed the overriding aim, of the Civil Procedure Act.
For the plaintiff to succeed in her application, it is necessary for her to demonstrate that there are sufficient reasons to justify the transfer of the matter from the District Court to the Supreme Court. As I have noted, she contends that the matters are complex and a complex proceeding of this nature would be better managed in the Supreme Court. As I understand the submission, it is, at least in part, the asserted complexity of the injurious falsehood proceedings which gives rise to a requirement for the jurisdiction of this Court to be exercised.
The plaintiff additionally asserts that, given that the second defendant is a regular litigant in defamation proceedings in the Supreme Court, the matter can be more conveniently and appropriately managed in this jurisdiction.
Thirdly, she refers to the issue of a probable jury trial as being one which militates in favour of the Supreme Court exercising the jurisdiction to transfer the proceedings to be dealt with in this Court.
I have been referred helpfully to some relevant authority, including the decision of Nationwide News Pty Ltd v Vasiljkovic [2009] NSWSC 1227, a decision from Justice Harrison. That, similarly, was an application to transfer defamation proceedings from the District Court to the Supreme Court, and there were considerations in that case as to taking evidence from a foreign jurisdiction. His Honour in that decision referred to the power provided by s 140 of the Civil Procedure Act as a discretionary power which is very wide in its application.
The legislation itself does not provide for any specific or particular considerations that the Court must have regard to, but clearly it is a power that requires the Court to determine whether there is good cause for the transfer. It is necessary for the Court to consider the facts and circumstances of the particular case and to consider whether the applicant has shown some sufficient ground or good reason why the order should be made.
In response to the plaintiff's application, the defendants submit that the applicant has failed to demonstrate any sound reason why the proceedings should be transferred to this Court. It is noted that the District Court conducts a specific defamation list. Indeed, I have been provided this morning with a copy of Practice Note 6 issued for the conduct of the District Court's defamation list. The District Court plainly has need for a Practice Note because of the volume of work which the Court deals with on a day-to-day basis. A defamation list is conducted in that Court at least each fortnight, if not weekly. The defamation list in that Court has the overall aim of achieving the just, quick and cheap resolution of the real issues in the proceedings, consistent with the objectives of the Civil Procedure Act.
The defendants submit that whilst there may be some level of complexity to the matter, it is not of such complexity as to be incapable of management and disposition in the District Court. It is submitted that the District Court has expertise, regularly conducts matters of this nature, and has both the procedure and the experience to manage and determine the statement of claim filed by the plaintiff. It is noted that the District Court has already taken steps to manage the proceedings to the extent of joining the claim for injurious falsehood, and the two claims are now running in tandem, as it were, before the District Court.
The plaintiff's complaint that the defendants have not filed defences in the District Court is answered when one considers the District Court's Practice Note. The Practice Note requires the statement of claim to be in the form in which it is expected to go forward, before the defendants file a formal defence.
The defendants answer the claim as to the frequency with which the second defendant is a litigant in the Supreme Court as a basis for transfer by pointing to the frequency with which it is also a litigant in the District Court in defamation proceedings. Indeed, the frequency with which one party or another might come before a particular jurisdiction is, to my mind, not a relevant consideration for the transfer of proceedings. If it were, the defendants point as to the frequency with which the second defendant appears in both jurisdictions is well made.
The reference by the plaintiff to the nature and manner in which the matter is to proceed - that is, by jury trial - is a consideration that the Court can have regard to but, as the defendants point out, a jury trial is available in either jurisdiction, and it is not a procedural mechanism which is such as to necessarily require a matter to be heard in the jurisdiction of the Supreme Court.
On the basis of the material before the Court, it is impossible to make a thorough determination of the overall complexities of the case which will be placed before either the District Court or the Supreme Court for litigation. However, it does not, on the material that I have had access to this morning, seem to be an unusually difficult matter or an unusually complicated matter. That is, of course, with the qualification that all defamation actions have a level of complexity, and that is particularly so for an unrepresented litigant.
The complaint made by the defendants as to the nature of the statement of claim filed in the District Court and the propriety of the pleadings is a complaint I do not need to determine for present purposes, but certainly it is more difficult for an unrepresented litigant to prosecute such a matter than it is for a litigant with access to legal representation.
That is not to be in any way critical of the plaintiff, but merely to note that the complexity of the proceedings is perhaps, to some extent, relative and, for the jurisdiction managing these proceedings, I am unable to see anything distinctive about them which particularly suggests that the jurisdiction of this Court is warranted. The District Court has a defamation list. It has judges sitting in that list with appropriate experience and expertise. The Court has the procedural settings in place to properly manage proceedings of this nature before it.
There are questions of expedition and cost which must be borne in mind when considering an application of this nature. I think it is virtually axiomatic that proceedings in the Supreme Court are more likely to be temporally drawn out and more financially costly than proceedings in the District Court. Whilst the workload of both courts is substantial, ordinarily the District Court is better able to provide an earlier hearing date for matters of this nature than is this Court, and the costs of prosecuting a claim in that Court are generally less. That is for all parties, and indeed for the Court and the justice system as a whole, and it is a consideration that the Court must have regard to, particularly when one considers the purpose of the Civil Procedure Act for the just, quick and cheap resolution of litigation.
I am not able to conclude, for reasons of either complexity or speed, that the claim would be better able to be heard in this Court. Indeed, it would appear that the plaintiff is likely to get a speedier trial date in that jurisdiction, at a lower cost in terms of the overall cost of the proceedings, and there is no basis upon which to conclude that the District Court is unable to manage the proceedings properly, professionally and with expedition. Particularly having regard to the breadth of the discretion which is provided by s 140, I am not able to identify any feature which either singly, or together with other features, is sufficient to warrant the exercise of the jurisdiction to transfer the proceedings. It appears to me on the evidence placed before the Court that the District Court is an appropriate and proper jurisdiction in which to have the matter determined. Proceedings are already subject to what seems to be appropriate management in that jurisdiction, and a hearing date there is likely to be more readily available at an earlier date than is a hearing date in this Court.
Accordingly, the summons is dismissed.
The Court having made orders dismissing the summons filed by the plaintiff for removal of proceedings to the Supreme Court from the District Court, the defendants make applications for their costs. That is opposed by the plaintiff, and I have heard submissions from both on that subject.
Ms AK is vigorous in her objection to costs and feels that she is being unfairly dealt with. At an individual level one can certainly understand how for an unrepresented litigant, it can be very difficult to understand why the Court might make an order for costs against the party whose application has not been successful, but the ordinary rule is that the costs will follow the disposition of the matter. The Court made an order here dismissing the summons and, again, acknowledging the great difficulty faced by an unrepresented litigant in knowing what actions to take, knowing what evidence to file in support of that action and knowing what is the best course to adopt. Legal action is difficult enough for those who are legally trained and experienced. It must be totally bemusing and confounding for someone without considerable experience as a legal practitioner.
Be that as it may, and being sympathetic as one can be as an individual, this claim was, as has been submitted for the defendants, without merit. The defendants have had to brief counsel, file material and deal with this application. They are entitled to their costs, and I propose to make a costs order against the plaintiff in favour of the defendants for the costs of these proceedings.
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Decision last updated: 23 September 2024