Bodenstein v Hope Street Urban Compassion

EX TEMPORE Judgment 1These proceedings were originally listed in the Defamation List on 3 February 2014. On that day, I adjourned them to the Defamation List today, that is, 3 March 2014. I advised the parties that they would need to show cause why the proceedings should not be transferred to the District Court pursuant to s 146(1) of the Civil Procedure Act 2005 (NSW). 2The plaintiff, Mr Amir Bodenstein, opposed the transfer. The defendants filed helpful submissions addressing various considerations affecting the transfer. However, their ultimate position was that they neither opposed nor consented to the proceedings being transferred. 3Subsection 146(1) of the Civil Procedure Act 2005 relevantly provides: "(1) If the Supreme Court is satisfied, in relation to proceedings before it: (a) that the proceedings could properly have been commenced in the District Court or the Local Court, and (b) that any cross-claim in the proceedings could properly have been brought as a cross-claim in the District Court or the Local Court, the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court or to the Local Court, as the case requires." 4In addition, s 86 of the Civil Procedure Act provides: "86 Orders (1) The power of the court to make orders in relation to proceedings, whether under this or any other Act or otherwise, includes the power: (a) to make orders by way of leave or direction, and (b) to make all or any orders on terms. (2) The power of the court to make orders on terms is taken to be a power to make orders on such terms and conditions as the court thinks fit. (3) Subject to this Act and to rules of court, the court may make any order that it has power to make either of its own motion or on the application of a party or any other person entitled to make such an application. (4) Nothing in this Act limits the operation of section 43 of the Interpretation Act 1987." (emphasis added) 5It was not submitted that either the Civil Procedure Act or the Uniform Civil Procedure Rules 2005 (NSW) had the effect that the Court could not act under s 146(1) of its own motion, as is contemplated by s 86(3). 6At one point, the view was taken that the District Court lacked sufficient expertise and experience to conduct defamation trials. This approach has been discounted for a significant period of time (see Hoser v Hartcher [1999] NSWSC 1060 at [12] per Levine J) ("Hoser"). Otherwise, traditionally the factors relevant to a decision to transfer have been held to include the status of the parties and the extent of the publication of the matters complained of (Cohen v Nationwide News Pty Limited (Supreme Court (NSW), Levine J, 29 May 1998, unrep), the amount of the damages that may be awarded, the seriousness of the imputations alleged and whether the proceedings involve matters of principle that warrant the attention of the Supreme Court (see Hoser at [8] to [10]). In addition, the defendant's submissions also referred me to the decision of Nicholas J in Haddon v Forsyth (Supreme Court (NSW), Nicholas J, 10 August 2009, unrep) in which the time at which the application was made for transfer was clearly a factor in the exercise of the discretion to send the matter to the District Court. 7Leaving aside Haddon, many, if not most, of the cases which outline the various considerations predated the enactment of the Civil Procedure Act 2005. However, the making of an order under s 146 falls within the concept of "any other order of a procedural nature", as specified in s 58(1)(a)(iii) of the Civil Procedure Act. It follows that, in considering whether to make such an order, the Court must seek to act in accordance with the dictates of justice and, in particular, have regard to s 56 and s 57, as well as the criteria in s 58(2). 8Of course, s 56(1) recites the objective of facilitating the just, quick and cheap resolution of proceedings. More radically, s 57 directs attention to the objects of case management, which extends to the needs and interests of other litigants and not just those conducting the proceedings in question, or even just those conducting defamation proceedings. 9The combination of sections 56 and 57 is of particular significance in defamation proceedings. Absent a claim for economic loss, the instances of large awards in defamation proceedings in the period after the decision in Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44, are very rare. This trend has been forced by the cap on damages now found in s 35 of the Defamation Act 2005 (NSW). 10For a variety of reasons, defamation proceedings often consume a significant amount of time and costs on interlocutory applications. The final hearings are usually lengthy. The end result is that, as a class, defamation proceedings have a tendency to consume a disproportionate amount of costs and judicial resources, having regard to the amount in issue, when compared to other cases. 11It might be said that, as defamation proceedings involve the vindication of a person's reputation, the proportionality of the costs and judicial resources they consume cannot or should not be judged by reference to the amount in issue in the proceedings. There is some force in that, but it nevertheless follows that an assessment of the likely amount of damages compared to the costs and judicial resources involved is still of relevance. 12The concept of "cheap" justice in s 56 of the Civil Procedure Act 2005 reflects an aspiration of proportionate justice, that is, that the amount expended on legal fees is proportionate to the amount that may be awarded. Similarly, s 57 contemplates there being some proportionality between the judicial resources consumed by a case and the amount in issue or, at least, the interests that are at stake. 13The interests in vindicating one's reputation may be important, but it must be remembered that all civil litigation involves one party seeking to vindicate their rights in one way or the other. Ultimately, like many other areas of the law, defamation puts a figure on the value of a right that is infringed. In the end result, I do not accept that there is anything unique about defamation proceedings that warrants them having any special claim to being heard in this Court when compared to other forms of civil litigation. 14In this case, the plaintiff sues in respect of some defamatory publications said to be constituted by some e-mails and verbal statements accusing him of, amongst other matters, theft, while he was employed on a casual or volunteer basis by a cafe and other places conducted by a charitable organisation. While the imputations alleged are reasonably serious, the extent of the publications was relatively confined. 15The statement of claim seeks the rather exact sum of $180,000 which, on its face, seems much more by way of ambit, given the case that is pleaded. Ultimately, the potential amount in dispute is modest. Assuming that s 146(1)(a) of the Civil Procedure Act is directed towards the monetary limit of cases that could have been commenced in the District Court, then this is such a case. Otherwise, a review of the pleadings reveals that there is nothing to indicate there is any point of law, or principle that is novel about the case. The proceedings are likely to be reasonably lengthy, though not overly lengthy by the standards of most defamation trials. 16One matter raised in the defendant's submissions, and what seems to be at the forefront of the plaintiff's opposition, is a concern that if the matter is transferred to the District Court then the hearing will take place later rather than sooner. While that may be a significant factor generally, I am not persuaded that it is significant in this case. At present, the state of the resources of the Common Law Division is such that there is only a limited amount of space for further hearings of any length to be allocated in this year, although further time may become available towards the end of the year. There is, apparently, a small window of opportunity for cases to be heard in June or July of this year for civil cases. However, if that hearing time was to be claimed by this one, it would only beg the question of whether this case should have been commenced in the District Court in the first place. Why should a case that is more appropriate to be commenced in the District Court displace another case which, presumably, was more appropriate to be commenced in this Court? 17In the end, I am not satisfied that if the matter was to remain in this Court rather than the District Court it would obtain an earlier hearing date. However, even if that was the case, I am not satisfied that it is such a factor that, having regard to the interests of other litigants, would warrant the matter staying in this Court. 18Various other matters were put by Mr Bodenstein in opposition to the transfer. I have considered those, but in the end they are encompassed by the matters that I have already outlined in this judgment. In the circumstances, I am satisfied it is appropriate to transfer the proceedings to the District Court. 19Accordingly, pursuant to s 146(1) of the Civil Procedure Act, I order that these proceedings be transferred to the District Court.