Hoser v Hartcher [1999] NSWSC 1060 | Case summary

JUDGMENT (Transfer to District Court) 1 The defendant applies for an order pursuant to s 143 of the District Court Act 1973 that this defamation action be transferred to that Court in Sydney. The application is opposed. 2 The defendant moves by Notice of Motion filed in Court on 27 August and the affidavit in support sworn 27 July of Simon William Davis solicitor for Mr Hartcher. 3 The lamentable history of the conduct of this litigation and the extraordinary nature of it is eloquently set out in the judgment of Simpson J of 2 June 1999 (NSWSC 527) wherein she dismissed a Notice of Motion on the part of the defendant to have the action stayed or dismissed for want of prosecution. 4 Apparently there is now anxiety in the defendant to have this matter disposed of; hence the present application. 5 The conduct of both the plaintiff and the defendant received appropriate critical comment from her Honour. It appears from the affidavit of Mr Davis that the plaintiff has failed to comply with Orders and Directions of this Court particularly in relation to the filing of a Reply. It is to be noted that one in fact was filed on 30 July 1999. 6 As I understand it there has been an exchange of correspondence between the solicitors for the parties relating to the plaintiff's intention to amend the imputations, that is, the causes of action, upon which he will rely against the defendant. 7 In the event the present imputations are: "5(a) The plaintiff made allegations against the NSW National Parks and Wildlife Service which he knew to be false; (b) the plaintiff made allegations against the NSW National Parks and Wildlife Service of so ridiculous a nature that he ought to have known they were false; (c) The plaintiff irresponsibly made a series of allegations against the NSW National Parks and Wildlife Service for the purpose of gaining publicity for himself; (d) The plaintiff had caused the NSW National Parks and Wildlife Service to expend considerable time and money by making a series of allegations against it which he knew to be false; (e) The plaintiff had caused the NSW National Parks and Wildlife Service to expend considerable time and money be making a series of allegations against it which were so ridiculous that he ought to have known that they were false". 8 The defendant proposes amongst other defences to justify and one can gather from the present application, he is anxious to do so. The imputations while serious are not of the upmost gravity. The quantum of damages the plaintiff is likely to obtain, on any view of the matter, will be severely affected by the admission into evidence of certificates of his conviction for perjury. Even leaving that to one side the plaintiff's quantum of damages severely will be affected, absent any acceptable explanation on the issue, by the delay in the initiation of the proceedings and in their prosecution. I mention these matters by reason of certain submissions made in the course of argument as to the operation of s 44 of the District Court Act 1973 and in particular, s 44(1)(e). 9 Relevantly that section is now in the following terms: "44(1) Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions:

(e) any proceedings transferred to the Court under section 143 (1), irrespective of the amount (if any) claimed in those proceedings". 10 The amendments to the District Court Act giving rise to the new s 44(1) came into effect on 2 February 1998. It was submitted for the defendant that there has developed a misconception in relation to the transfer of defamation actions to the District Court to the extent that there is a belief held that the jurisdiction of that Court is limited to $750,000. It is argued that the proper construction of s 44(1)(e) leads to the conclusion that the jurisdiction of the District Court is "unlimited" in relation to an action transferred under s 143(1) of that legislation. This is an interesting question that to some extent was considered by Sperling J in Moira Cremona v Joseph Ho Shon (unreported, 21 August 1998). His Honour was there dealing with an action for personal injury though the nature of that action is not disclosed by his Honour's judgment. His Honour merely made a declaration that in relation to the action with which he was concerned the District Court had jurisdiction pursuant to s 44(1)(e) in the context of the defendant having failed to consent to unlimited jurisdiction in the District Court in that personal injuries case. Arguably by implication it could be said that an action transferred under s 44(1)(e) from the Common Law Division to the District Court being an action for defamation is not subject to any statutory limitation in the District Court as to a jurisdictional limit (namely, $750,000). This is a nice point which it is not necessary for me to decide as viewing the whole of this action and the material referred to in the affidavit in support of the application, on no rational basis could one see this plaintiff being awarded let alone being awarded a sustainable verdict anywhere near the verdict of $750,000. If consequent upon any order for transfer to the District Court a verdict in the plaintiff's favour in a sum in excess of $750,000 is ordered, subject to any prior to decision of this Court on a case more pertinent to the issue, the question of his right to retain it would no doubt be the subject of determination. 11 It is argued by the plaintiff that he would be deprived of the right to trial by jury. That is not so. In the Supreme Court he has a right automatically. In the District Court he may apply for a trial by jury and I am not persuaded in this case that the mere fact that he might have to apply for one and subject himself to any discretionary considerations to be applied by the District Court judge is sufficient basis for not otherwise transferring the matter to the District Court. 12 It has to be observed now that the observations of Hunt J in Brown v Mirror Newspapers Limited (1983) 2 NSWLR 80 are no longer of continuing relevance. There exists in the District Court a mechanism akin to the Defamation List established in this Court and thus any notion of "expertise" said to be exclusively within the province of the Supreme Court is unable vis-a-vis the District Court. 13 There is nothing in relation to the status of the parties, in my view, that precludes transfer to the District Court. I am not suggesting that the status of the parties is conclusive as to retention or determinative of transfer in some invidious distinction drawing way (see my remarks in Ieremia v Skalkos & Anor (unreported, 19 March 1999 (NSWSC 315). At the time of the publication complained of the defendant was a Minister for the Crown who issued a press release. I do not think that is a relevant consideration in the whole context of this case (intending no disparagement of the defendant who presently still is a Member of the New South Wales Parliament in Opposition). 14 It is argued for the defendant that the action will be listed for hearing far more quickly in the District Court than in the Supreme Court. This is a delicate proposition: it has to be acknowledged that the District Court is enjoying remarkable success in the disposition of its Civil Lists. The use of arguments about long matters callovers and deferring of hearings in the Supreme Court to say, 2001 if there is further delay may not be of continuing validity. 15 This is not in my respectful view a major defamation action: time and costs will be saved by its immediate transfer to the District Court. The saving will be greater of course if the plaintiff and the defendant both diligently prosecute the action on the one hand and the defence on the other. If there is seriously to be an argument about imputations that can be dealt with in the District Court. 16 This particular application does not lend itself to the exposition of a set of principles or guidelines to operate in connection with the transfer of defamation actions to the District Court. Defamation actions may range from mass media communications involving citizens of high prominence on the one hand and what are referred to as "backyarders" on the other. Each action of course is important to each litigant. The quantification of damages is in a state of flux as-it-were in terms of actions commenced after 1 January 1995 in relation to publications after that date wherein damages lie in the hands of judges. I know of no case in the Supreme Court in which a judge who has enjoyed the benefit of the smooth conduct of the post-1995 case to the point of trial has awarded any sum approaching the assumed jurisdictional limit of the District Court of $750,000. 17 I add that I do not see anything in this litigation as exposed by the pleadings as indicating any major matter of principle that would warrant the consideration of this Court. 18 I order that the action be transferred to the District Court at Sydney. The plaintiff is to pay the defendant's costs of the application heard on 27 August 1999. ***********

Hoser v Hartcher

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