1. Mr Coutts has made a civil dispute application (application) which included a statement of claim (statement of claim) dated 12 February 2019 in which he seeks damages in an amount of $25,000 plus the filing fee for defamation arising from a comment by Mr Walls on an article on the Facebook site of a third party.
2. The solicitors for Mr Walls wrote to the solicitors for Mr Coutts on 6 March 2019 and raised issues with the statement of claim, and then wrote to the solicitors for Mr Coutts on 25 March 2019 in which it was said that Mr Coutts should be advised of the unsuitability of pursuing the claim in the tribunal because defamation is a highly technical area and the hearing would not be short and would take four to five days, and asked for consent to transfer the matter to the Supreme Court. The solicitors for Mr Coutts replied on 25 March 2019 stating that the tribunal is a suitable venue, the statement of claim was not flawed, and the estimate of time and costs was not accepted.
3. Mr Walls then filed an application for removal to the Supreme Court on 24 April 2019 (removal application). A key element of this removal application was that the respondent denies the imputations alleged and is also likely to rely on the defences of justification under statute and at common law, contextual truth, qualified privilege, fair comment, honest opinion, bad reputation and triviality. The removal application set out in some detail the questions of law and fact which would arise in considering these issues. The removal application stated that:
   • (a) in the tribunal a successful party is not normally entitled to payment for their legal costs;
   • (b) the Supreme Court has a discretion to order costs which normally "follow the event and can have regard to formal offers of compromise";
   • (c) costs are likely to rapidly exceed the maximum award for compensation in the tribunal; and
   • (d) it would work a severe injustice on Mr Walls and risk bringing the administration of justice into disrepute if, because of the forum, Mr Walls must decide between incurring substantial costs which are likely to be irrecoverable irrespective of outcome or to capitulate and settle what he regards as a wholly unmeritorious claim.

1. The hearing of the removal application took place on 16 May 2019. Mr Coutts was represented by Mr J T Moffett instructed by Mr David Healey, Solicitor. Mr Walls was represented by Mr M A Polden instructed by Mr Stefan Russell-Uren of Aulich Civil Law. The respondent tendered an affidavit of Mr Russell-Uren, who was, notwithstanding the objection of the respondent, cross-examined on one aspect of that affidavit.

1. Section 83(2) of the ACAT Act provides that if a party to a matter applies to have the matter removed to the Supreme Court, the tribunal may, if it considers it appropriate, order that the matter be removed to the Supreme Court. Rules 1440 and 1441 of the Court Procedures Rules 2006 (Court Procedures Rules) facilitate this. Section 83(2) gives the tribunal a broad discretion to refer, based on whether the tribunal considers it appropriate.
2. Similar provisions in other jurisdictions are more restrictive. The Administrative Appeals Tribunal Act 1975 (Cth) provides only for the referral of questions of law to the Federal Court (section 45; see also section 54 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW)). In contrast section 77(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states that that the Victorian Civil and Administrative Tribunal (VCAT):

... may make an order striking out all, or any part, of a proceeding (other than a proceeding for review of a decision) if it considers that the subject-matter of the proceeding would be more appropriately dealt with by a tribunal (other than the Tribunal), a court or any other person or body.

The Victorian provision is in substance similar to the ACAT Act provision; both are founded on a concept of appropriateness.

1. There is a similar power to section 83(2) of the ACAT Act in section 270 of the Magistrates Court Act 1930 (Magistrates Court Act) which provides that the Supreme Court may order that proceedings in the Magistrates Court be removed into the Supreme Court (see also rule 1432 of the Court Procedures Rules). It is also relevant that section 268 of the Magistrates Court Act and rule 1430 of the Court Procedures Rules provide for the transfer of proceedings from the Supreme Court to the Magistrates Court.
2. Justice Bryson in Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924 at [4] referred to the need for a sound or good reason why an order for removal ought to be made. Judge Harbison of VCAT has referred to the high level of satisfaction required before a removal order will be made in that jurisdiction, with the onus of proof on the party who applies for it.[1] There is no indication in section 83(2) as to the factors to be considered in relation to such a referral. Factors considered in other tribunal hearings have included:
   • (a) the nature of the substantive application;
   • (b) whether there is a matter of public importance, legal or factual complexity involved[2]; and
   • (c) the formal processes available in the Supreme Court and the costs protection available there.[3]

Some of these issues were raised in this removal application, and are now considered.

1. The applicant chose to commence these proceedings in the tribunal. He framed his claim so that it is within the jurisdictional financial limits of the tribunal (section 18 of ACAT Act). No challenge was made to the jurisdiction of the tribunal to hear this matter; no issue was raised that it appears that Mr Walls resides in New South Wales. The applicant opposes the removal. This factor supports the proceedings remaining in the tribunal.
2. In Kalis v Waltham [2010] ACTSC 94 at [22] and [26], Master Harper commented in reference to the power of transfer under section 270 of the Magistrates Court Act that whilst the power is a general one, the overwhelming volume of applications for removal are made in actions for damages for personal injury, usually in circumstances where the plaintiff's condition has worsened since proceedings were commenced, or where counsel had advised that the upper limit of damages might exceed $50,000. He said that almost always such applications will be granted, the court taking the view that any prejudice to the defendant arising from the removal is capable of being met by orders for costs, and perhaps other matters, when final orders are made in the action. These comments were affirmed by Justice Refshauge in Jin v Ai [2011] ACTSC 70, in the context of removal of a claim not for personal injury but upon the breakdown of a de facto relationship.[4] Such circumstances are a long way from those in this case where the applicant is content with the limited financial jurisdiction of the tribunal.

1. The respondent raised the limited power which the tribunal has to award costs. Section 48(1) of the ACAT Act provides that the parties to an application must bear their own costs unless the Act or another territory law otherwise provides or the tribunal otherwise orders.[5] Section 48(2) does provide otherwise in some circumstances. This provision has been chosen by the legislature in light of the nature of the tribunal and its jurisdiction, including its civil disputes jurisdiction. The applicant having commenced the proceedings in the tribunal takes the benefit that he is unlikely to have to pay the costs of the respondent, but the detriment that it is unlikely he will recover his own costs even if he is successful. The respondent obtains a similar benefit and detriment. In the Supreme Court or Magistrates Court there is a different regime, but it also has benefits and detriments. There the respondent would generally receive his costs if he is successful, but of course if he is unsuccessful he will have to meet his own costs and generally the costs of the applicant. I do not think that the preference of the respondent for a different costs regime to that in the tribunal is a reason for transferring the proceedings. This is a position which has been taken in VCAT.[6]
2. The respondent argued that the complexity of this matter makes the tribunal costs regime inappropriate and unfair to the respondent.[7] In particular it was said that the respondent will need to incur very significant costs in defending the proceedings which he will probably be unable to recover even if he wins. Those costs were calculated at substantially in excess of $200,000.[8] It was said that this will place inappropriate pressure on the respondent to settle the claim.
3. As noted the legislature has chosen section 48 of the ACAT Act as the appropriate costs regime for the tribunal and its jurisdiction. I do not think that it can be said that this regime is generally or in this case unfair. The costs incurred by the respondent in defending the proceedings are a matter for him, in consultation with his lawyers. All respondents need to assess the benefits of fighting, settling or admitting a claim, in light of a range of factors including the costs involved. I do not think that a decision by the respondent and his legal advisers strenuously to defend the claim with significant legal resources should deny the applicant the right to bring the proceedings in the forum of his choice. Further, I do not think that a process which encourages parties to consider settlement, and facilitates such settlements, which the tribunal provides, is inappropriate.

1. These proceedings are at an early stage. The respondent stated that complex issues may be raised,[9] but he has not formally raised them as yet. The applicant is of the view that these proceedings are simple, as set out in his application.
2. It may be that a range of issues will be raised in the proceedings. The respondent was correct in stating that defamation is a notoriously difficult area. But the relevant jurisdictional limits on the tribunal are monetary, not complexity. Many claims of $25,000 or less raise the same legal issues as claims of greater, sometimes much greater, amounts. The amount is often a poor indicator of complexity. Further, many of the claims made in this tribunal are not only complex but of fundamental importance to the people affected. Further again, many of the proceedings in this tribunal involve people who are disadvantaged in some way; this does not appear to be the case here, but I am reluctant to develop a positon which applies generally and places further hurdles in the path of already disadvantaged parties seeking to have their proceedings heard in the tribunal.
3. Therefore I do not think that complexity of itself, and in this case only possible complexity, is a reason to transfer the proceedings. Again this is a position which has been taken in VCAT.[10]

1. The strongest argument for the respondent was that the Supreme Court has better processes and mechanisms for managing complex defamation litigation. The respondent referred to comments of VCAT in Bentley v Cash Resources Australia Pty Ltd [2002] VCAT 1399 at [15] that:

...if the subject matter is complex, involves difficult issues of fact and law, and requires pleadings and case management processes which are more typical of processes adopted by the Supreme Court, an argument may well be advanced that such a case should be struck out and referred to the Supreme Court.

1. But the outcome of that removal application, in proceedings which bore some of the characteristics described, was that VCAT heard the matter. I note however that in that case this appears to be because it was argued that the claim if removed would not be justiciable in a court, and also that the claim was well progressed in the tribunal. But generally VCAT has been reluctant to remove proceedings where it is alleged that the tribunal lacks sufficient expertise, adequate powers in relation to the discovery of documents, or sufficiently structured pleadings or appropriate case management procedures to enable it to deal with complex or sizeable cases.[11] The position is different where there are related proceedings on foot elsewhere, or there are doubts about the power of the tribunal to give aspects of the relief sought;[12] but this is not the case at present in these proceedings.
2. At any rate, it would seem likely that this matter would, if removed, be transferred again to the Magistrates Court rather than heard by the Supreme Court. The Supreme Court can under Rule 1430 of the Court Procedures Rules and section 268 of the Magistrates Court Act to transfer proceedings from the Supreme Court to the Magistrates Court. In this case the requirements for doing so seem to be met.
3. Further, the tribunal has significant powers to make orders and provide case management, similar to those of the Supreme Court and Magistrates Court. In particular the tribunal:
   • (a) is required to take all reasonably practicable steps to resolve matters arising in an application before the application is heard;[13]
   • (b) can make a range of orders and directions;[14]
   • (c) can dismiss or strike out applications;[15] and
   • (d) can make costs orders if a party causes unreasonable delay or obstruction or contravenes an order of the tribunal.[16]
4. The respondent did argue that the application was seriously defective.[17] But this is a matter which would need to be addressed by whichever body hears the proceedings with the powers available to it. In this regard the tribunal, the Supreme Court and the Magistrates Court each have relevant powers to assist in doing so.
5. In Bell & Robert De Castella and Rob De Castella's Smartstart for Kids Limited [2014] ACAT 9 at [22] Presidential Member Symons did refer proceedings to the Supreme Court, because she was satisfied that the matter would be well served by the formal approach to proceedings there. But this was an appeal from a decision of the tribunal where the appellant adopted a scattergun approach with prolific documentation to present everything he could and in effect sought to have the whole matter reheard. In such circumstances it was thought appropriate that the respondent have the protection of a possible costs order for a successful party. Here there is no appeal, indeed the proceedings have just begun, and no evidence of a scattergun prolix approach by the applicant.
6. It is true that as the respondent pointed out the tribunal is required to ensure the its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice, and observe natural justice and procedural fairness.[18] The requirement for simplicity and the implementation of this principle in the procedures of the tribunal allows for parties to be self-represented if they wish, or to have a range of legal representation if they wish. I do not think these principles are inconsistent with the appropriate resolution of a defamation claim.
7. And the Supreme Court maintains its supervisory jurisdiction in relation to the tribunal which either party can seek to access if necessary.[19]

1. The respondent suggested that this was a matter of public interest, and should be removed for this reason. The basis for this was that the proceedings concern members of the Australian Federal Police, to some extent touch on the performance of their public functions, and concern the use of social media. I think it is true that the matter raises issues of public interest. But I do not think that this is a basis for transferring the proceedings. The tribunal is given jurisdiction to deal with a wide range of matters; indeed many matters in the tribunal focus on issues of the performance of public functions, and on this basis raise matters of public interest.[20]

1. Therefore I do not think that the respondent has at this stage of these proceedings demonstrated a sound or good reason why an order for removal ought to be made.

[1] Commonwealth Bank of Australia v Slaveska [2008] VCAT 2072 at [34]- [36]

[2] Superal-Wallace v Indypendent Pty Ltd [2016] ACAT 144 at [30]

[3] Bell & Robert De Castella and Rob De Castella's Smartstart for Kids Limited [2014] ACAT 9 at [22]

[5] Considered in CIC v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96

[6] Camillo Concrete Structures Pty Ltd v Baulderstone Pty Ltd [2010] VCAT 285 at [24]

[7] Transcript of hearing on 23 May 2019 at pages 25 and 36

[8] Affidavit of Stefan Russell-Uren of 24 April 2019 at [44]; transcript of proceedings 23 May 2019 page 14

[9] Transcript of proceedings 23 May 2019 pages 19-25

[10] Raline Industries Pty Ltd v MJPE Investments Pty Ltd [2006] VCAT 1607 at [35]

[17] Transcript of proceedings 23 May 2019 pages 39-42

[19] See for example Bailey v Bottrill (No.2) [2019] ACTSC 167

[20] For example review of a range decisions made by the ACT government, including planning and freedom of information decisions, occupational discipline cases, and discrimination complaints, in addition to civil claims within its monetary jurisdiction.