Kirali v Matthews

District Court of NSW|2022-06-09|Before: Levine J, Ms P

Solicitors: Plaintiff: KPW Lawyers Defendant: Animal Defenders Office Inc. File Number(s): 2021/00284209

The application before the court

The plaintiff and defendant are neighbours living in a remote country area of Victoria. The defendant, by notice of motion filed on 19 April 2022, brings an application for stay or dismissal of these proceedings on the grounds of inconvenient forum, both at common law and pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth) ("SEPA").
The defendant relies upon the following evidence: 1. Affidavit of Tara Ward affirmed on 19 April 2022. 2. Correspondence between the parties dated 29 March 2022, 14 and 19 April 2022.
The plaintiff, who opposes the application, relies upon the following evidence: 1. Affidavit of Hayley Rake sworn on 11 May 2022. 2. Affidavit of Hayley Rake sworn on 24 May 2022. 3. Affidavit of Service of Stephen Galvin sworn on 27 October 2021.
The defendant also brought an application for the proceedings to be dismissed on other grounds, but this part of the application was not proceeded with.

The statement of claim

The causes of action pleaded in the statement of claim are as follows: 1. Paragraphs 6 and 7 set out a claim for defamation for publication of two short posts on the Facebook page of Rochester (Victoria) Buy, Swap and Sell, made between October 2020 and 30 June 2021 (paragraph 5 of the statement of claim,) referring to a development application by a "puppy farm". This is followed, in paragraph 8, by a claim for damages for other publications by the plaintiff between 9 October 2020 and 30 June 2021, appearing on Oscar's Law Facebook Page and Echuca MOAMA New Buy Swap and Sell Facebook Page. These "republications" are relied upon as to damages only and their text is not reproduced. 2. The second claim for defamation is a one-page screenshot of a series of posts by the defendant, where the only words reproduced are "puppy farm in Rochester"; "will be fighting against you p[sic]"; "It's a puppy farm in Rochester", "Rochester puppy farm"; and "Beware! This is Rochester pup [sic]". It is pleaded that these were published on the "Amey's Puppies" Facebook page. 3. The third matter complained is, according to paragraph 14 of the statement of claim, the publication made by the defendant to the Campaspe Shire Council in Victoria on 9 October 2020 in response to the plaintiff's Development Application. There is an assertion in the particulars that the matter was also "published" to two members of parliament and to their staff but there is no assertion of actionable separate publication to them, or of any online or social media publication of this document. 4. The fourth matter complained of is a post by Oscar's Law appearing on the defendant's website stating: "We won! Thank you to everyone who took part in our objection campaign to stop a puppy farm expanding. Thousands and thousands of objection emails were sent. And this morning, the applicant WITHDREW." The defendant responds by saying "Now to stop his suspected plan of transportation of dogs to the other property" which is followed by Oscar's Law's post stating that this development application (which was made in New South Wales) had also been withdrawn. 5. The plaintiff additionally claims damages for these same publications on the basis that each of them is misleading or deceptive (or likely to mislead or deceive), contrary to the provisions of ss 18(1) of the Competition and Consumer Act 2010 (Cth) Schedule 2 ("the ACL"), as well as for damages and other relief under ss 20 and 50 of that Act. This pleading appears to be in identical form to the claim made by an individual (as opposed to a corporation) which was struck out in Sarina & Anor v O'Shannassy [2019] FCCA 732 at [5] - [7]) for damages and relief under ss 18, 20 and 50 of the ACL, and it was also brought as an alternative to a defamation claim. The same place of publication rule applies to this ACL claim, but no particulars of identification or downloading are provided (cf Ramsey & Ors v Vogler [2000] NSWCA 260).
As the plaintiff is not named, it is necessary for him to provide particulars of the names and addresses of the persons who read the matter complained of and identified him, and how they were able to do so. As to persons who downloaded the internet publications in New South Wales, the plaintiff provides details for two persons who live in Moama, which is on the border between New South Wales and Victoria, and one person who lives at Wentworth Point. All the other persons who identified the plaintiff live interstate (not only in Victoria) or overseas.

The defence

A defence was filed by the solicitors formerly acting for the defendant. Its contents were acknowledged by Ms Hart to be so hopeless that she agreed to an order that it be struck out with liberty to replead. It would appear that defences of qualified privilege and some form of partial justification were intended, although these were erroneously pleaded under the amended legislation and not the repealed legislation, despite all publications being made prior to 1 July 2021.
This application has proceeded on the basis of the likelihood of defences of some form of justification, qualified privilege and/or honest opinion.

Section 20 of the Service and Execution of Process Act 1992 (Cth) ("SEPA")

Section 20 is the key clause of SEPA, which is "a centrally important statute in the administration of justice throughout Australia" (Joshan v Pizza Pan Group Pty Ltd (2021) 106 NSWLR 104 ("Joshan") at [39]). It provides as follows: "Stay of proceedings (1) This section does not apply in relation to a proceeding in which the Supreme Court of a State is the court of issue. (2) The person served may apply to the court of issue for an order staying the proceeding. (3) The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters. (4) The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include: (a) the places of residence of the parties and of the witnesses likely to be called in the proceeding; and (b) the place where the subject matter of the proceeding is situated; and (c) the financial circumstances of the parties, so far as the court is aware of them; and (d) any agreement between the parties about the court or place in which the proceeding should be instituted; and (e) the law that would be most appropriate to apply in the proceeding; and (f) whether a related or similar proceeding has been commenced against the person served or another person; but do not include the fact that the proceeding was commenced in the place of issue. (5) The court's order may be made subject to such conditions as the court considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense. (6) The court may determine the application for an order without a hearing unless the applicant or a party objects. (7) For the purposes of determining the application, the court may hold a hearing by audio link or audiovisual link. (8) A person who is entitled to practise as a barrister, solicitor or both before a court in: (a) the place of issue; or (b) another State in which a person is participating in the hearing by audio link or audiovisual link; has a right of audience before the court at the hearing. (9) This section does not affect the court's power to stay a proceeding on a ground other than the ground mentioned in subsection (3). (10) This section does not affect the operation of: (a) the Jurisdiction of Courts (Cross-vesting) Act 1987 ; or (b) a corresponding law of a State."
As to stay orders, s 67 of the Civil Procedure Act 2005 (NSW) provides: "67 Stay of proceedings Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day."
The decision of the Court of Appeal in Joshan has completely transformed this area of the law. In place of a high test that was difficult to satisfy, Bell P (as his Honour the Chief Justice then was; I have retained this nomenclature for reasons of clarity) has set out a series of fifteen factors for the court to take into account where the test is now one of balance of probabilities.
The first two of the fifteen factors set out by Bell P in Joshan relate to jurisdiction issues and can be dealt with quickly. First, the application is properly brought in this court (for the reasons set out at [51]). Second, Form 1 was attached to the statement of claim so there is no question of irregularity.
Before dealing with the remaining factors, I note that one of the most significant changes in approach in Joshan was to take into account (factor 12 in Bell P's list) the fact of a plaintiff having started in a particular jurisdiction and, by implication, the plaintiff's reasons for doing so (Joshan at [62]). Previously, this had been a factor that judges were instructed by appellate courts to ignore. The reasons given by the plaintiff's solicitors to the defendant's former solicitors for starting these proceedings in New South Wales are, for this reason, a helpful starting point to a consideration of the relevant factors.

The plaintiff's explanation for commencing proceedings in Victoria

The parties reside in Victoria and the matters complained of consist of an objection to a Development Application lodged with a council in Victoria as well as posts on the Facebook accounts of persons or organisations in Victoria complaining about the application or celebrating its withdrawal. Even the plaintiff's list of proposed witnesses names only three identification witnesses in New South Wales (two of whom live on the Victorian border) in circumstances where there are many other identification witnesses interstate or overseas. The plaintiff has business interests in a dog business in New South Wales, and this is referred to in the fourth matter complained of, but the focus of all four publications is the Victorian business, "Amey's Puppies". Why, then, did the plaintiff commence proceedings in New South Wales?
Explanations for commencing in New South Wales are set out in correspondence from the plaintiff's solicitor to the defendant's former solicitor when he queried why the proceedings had not been started in Victoria. Ms Rake, in her letter in reply of 26 October 2021, stated the reason for commencing in New South Wales was as follows: "Further we note that, in defamation proceedings, damages are at large and that in NSW there is a statutory cap on general damages which is currently $432,500 (cf Government Gazette (NSW), No 247 of 11.6.2021 [n.2021-1205]). We consider that NSW is the appropriate forum to adjudicate this dispute."
This explanation was expanded upon in a letter Ms Rake sent to the defendant's former solicitor on the following day (27 October 2021). After complaining that the defendant's former solicitor's correspondence was "unnecessary, accusatory and threatening", Ms Rake stated: "Contrary to your assertion, this office has responded to your requests in a substantial way. We assert that the District Court of NSW is the proper forum to adjudicate our client's dispute. We note for example that our client is a reputable dog breeder who has clients throughout Australia and business interests in NSW. We note further that the District Court of NSW at Sydney has a specialist Defamation List with a judge who has considerable experience in managing defamation cases. As we understand it, this is not the case in the County Courts [sic] of Victoria. We also note that your client's publications were largely on public pages on Facebook which have a potential to reach people all over the world and within Australia."
As to the first of these statements, in relation to the reference to quantum of damages, Mr Rasmussen said that what Ms Rake meant was that it was in the defendant's interests for these proceedings to be conducted in the District Court of New South Wales, because damages awards in Victoria were higher than in New South Wales. I doubt whether this is accurate; comparison of Victorian awards with New South Wales awards (T K Tobin and M G Sexton, Australian Defamation Law and Practice at [60-530] ff) suggests that the reverse is in fact the case. This, however, is a trivial matter. Of more relevance is the asserted lack of defamation expertise in the Victorian County Court. Mr Rasmussen explained that what was meant was that Victorian circuit courts did not hear defamation actions, which are all heard in the city of Melbourne; a transfer to Victoria would require the defendant to travel to Melbourne which, given the distance from the defendant's countryside home, was just as inconvenient to the defendant as coming to Sydney. He assured the court that defamation actions could not be heard at closer venues, which he nominated as Bendigo or Ballarat.
That would be a persuasive argument if this were true, but it is incorrect. Circuit courts in both the Supreme and County Courts in Victoria can, and do, hear defamation actions in country courts. Applications have been brought to transfer defamation proceedings to circuit court venues where appropriate. That is what occurred in Mirabella v Price & Anor (Rulings) [2017] VCC 794 ("Mirabella"). The defendant in those proceedings successfully sought a transfer to the Wangaratta Registry of the County Court, relying upon the observations of J Forrest J in McCready v Bendigo Health [2014] VSC 564 at [15]: "…it is in the interests of the administration of justice in this State that cases arising out of a particular regional event and involving residents of that region be determined in the local court, if that can be accommodated and a fair trial ensured. As Warren CJ has observed in several extra-judicial statements, the Supreme Court of Victoria is a court for all Victorians - this means not only the litigants but also those in regional centres who are entitled to expect that any civil litigation arising in that area will be determined in the local court."
J Forrest J went on to add at [28]: "Although by no means determinative of the result, I regard it as highly desirable that the residents of Bendigo have the opportunity to watch and, perhaps as jurors, participate in a trial involving the treatment of a local resident at the major hospital in their city. The events giving rise to the claim arose in Bendigo and it is the natural forum for the case. It was not suggested by either party that either Mrs McCready or the Hospital could not obtain a fair trial in Bendigo. No doubt the selection of the jury might require a greater pool than usual, but this is not an insurmountable problem."
Those statements were considered particularly apt by Judicial Registrar Gurry in Mirabella, as the role of the jury has remained a central part of defamation trial hearings. Judicial Registrar Gurry noted other defamation actions where an application had been brought to transfer proceedings, such as a transfer from Sydney to Albury (Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 and, in Coogan & Anor v Southern Publishers Pty Ltd & Ors (Supreme Court of New South Wales, Levine J, 21 June 1996), a transfer where Levine J described the content of the defamation proceedings as "a local matter".
Ms Mirabella's action was indeed heard at Wangaratta, and by a jury, and case managed in the Defamation List of the County Court throughout, as the headnote to the assessment of damages confirms: Mirabella v Price & Anor [2018] VCC 650.
Mr Rasmussen acknowledged that this level of flexibility as to venue was not a feature of the New South Wales Supreme or District Courts. He also acknowledged the existence of a Defamation List in both the Supreme and County Courts of Victoria and that recent decisions of the County Court had included an award of damages in a defamation action where the imputations pleaded (namely conducting a "puppy farm") were very similar to those here: Aurisch & Anor v Wilson [2022] VCC 720.
In those circumstances, this rationale for commencing proceedings in New South Wales is misconceived and does not assist the plaintiff.
There are, however, other factors of relevance to applications such as the present, all of which are comprehensively set out in the remaining list of factors in Joshan. Both counsel agreed that this judgment stresses that the court no longer needs to be satisfied that there is a "clear and compelling basis" for concluding that another court is the appropriate forum for the resolution of the dispute, and that the standard of proof is the balance of probabilities. As Bell P has set out (at [50] - [67]) a comprehensive analysis of all relevant factors which determine the correct approach to the legislation in Joshan, the merits of this application fall to be considered conformably with the explanations set out in that judgment, and not simply on the reasons proffered by the plaintiff's solicitor in correspondence prior to this application. This requires a careful consideration of the pleadings and of the affidavit material.

Evidence of the defendant

The defendant's arguments may briefly be summarised as follows: 1. All of the s 20(4)(a), (b) and (c) factors favour Victoria, and these are of particular significance in defamation proceedings.. 2. The cost of the defendant and her witnesses travelling to Sydney would be financially crippling and (despite, or perhaps because of, AVL) longer and more difficult to run.. 3. The defendant has significant health and family problems.
The plaintiff raises the following in response: 1. The place of residence and site of the subject matter are of very little importance in this case. Publication on social media amounts to publication in every State and Territory where the plaintiff can establish downloading by persons knowing his identity. Any jurisdictional issues of concern (such as the pleading of Hore-Lacy imputations (Hore-Lacy v David Syme & Co Ltd (1998) A Def R 53-010)) can be dealt with by reference to s 11 of the Defamation Act 2005 (NSW). It is desirable that these proceedings be heard in New South Wales because of the greater expertise of the courts at all levels. 2. Costs issues can be kept to a minimum if witnesses other than the parties give their evidence by AVL. 3. The court should be suspicious of the claims of hardship made by the defendant in circumstances where she has not put on an affidavit providing details of her financial position or provided medical evidence of the health and other problems adverted to in her solicitor's affidavit.

Section 20(4)(a): the place of residence of the parties and witnesses

The plaintiff and defendant both reside in Victoria. The defendant has supplied a list of witnesses who are likely to be called. The most significant of these witnesses are the Councillors and employees of the Campaspe Council, whose evidence would go to defences of qualified privilege and justification.
The plaintiff points to witnesses residing in New South Wales, South Australia and overseas. These are, however, identification and reputation witnesses. It may be that, if an order for statements is made, they will not be cross-examined at all, or that they may be briefly cross-examined by AVL. This would be necessary for the overseas witnesses in any event.
Although Mr Rasmussen submitted that the places of residence of the parties was of little importance in actions for defamation where the publication is Australia-wide and worldwide, it seems significant to me that the opening words of the first factor to take into account in relation to s 20(4)(a) are "the places of residence of the parties" and, similarly, the places of residence of the witnesses.
There may well be evidence, not only from Campaspe Council staff, but also other local residents, about factors relevant to a wide range of defence-based issues. Bell P sets out in Joshan (at [57]) the importance of this factor in context with "all the matters in issue between the parties" (the phrase used in s 20(3)). The matters in issue between the parties will all relate to Victorian-based matters, ranging from their respective businesses in the adjoining properties to the evidence of other local residents to evidence about animal cruelty legislation in Victoria and any relevance it has to development applications.
Additionally, if the claims of misleading and deceptive conduct go forward, they seem more likely to do so under State legislation, given the fact that the plaintiff is not a corporation.

Section 20(4)(b): the place where the subject matter of the proceeding is situated

What is meant in s 20(4)(b) by "the subject matter of the proceeding"? Is this a reference to the elements of the claims for defamation and misleading and deceptive conduct, or the circumstances in which there is a dispute between neighbours over the plaintiff's proposed use of his property to breed more dogs?
As applications under s 20 are not often appealed (see Joshan at [66]), it is helpful to look at other first instance judgments on forum where the subject matter has a close relationship to land use. In Herriots (Cairns) Pty Limited v Genworth Financial Mortgage Insurance Pty Limited; Herriots Pty Limited as Trustee for the Ian Herriot Family Trust v Genworth Financial Mortgage Insurance Pty Limited [2015] NSWDC 139 at [35], Neilsen DCJ considered that, where the subject matter of the proceedings is intimately tied to real property in another jurisdiction, it may be more appropriate for that jurisdiction to determine the issues: "However, where the subject matter of the proceedings is tied so intimately to real property in another State and the court of the other State has jurisdiction to determine all the issues between the parties, I believe it is more appropriate to find that the District Court of Queensland is the more appropriate court to determine the matters in the current proceedings"
The defendant also points to the strong interest in Victoria about animal farming legislation and the interest of any local community in development applications in the area in which they live.
I consider that "the subject matter of the proceedings" is intimately bound up with the parties' adjoining properties and with the strong local community interest factors taken into account in Mirabella.
As to the "issues" in defamation proceedings, I understand that the social media websites where items were posted are run by persons living in Victoria. Clearly the plaintiff's reputational damage is likely to be greatest in Victoria. The necessary factual material for defences of justification, qualified privilege and/or honest opinion are all most likely to be determined by evidence from persons or documents located in Victoria.
For these reasons, the factors relevant to s 20(4)(b) favour the defendant.

Section 20(4)(c): the financial circumstances of the parties

The factors in s 20(4)(c) were strongly pressed by Ms Hart. The evidence in paragraph 3 of the Affidavit of Tara Ward dated 19 April 2022 as summarised in paragraph 24 of the Ms Hart's submissions as follows: "24. Further and alternatively, the defendant submits that the District Court of New South Wales is a "clearly inappropriate forum" as the continuation of the proceedings in NSW would be "vexatious and oppressive" or "clearly inappropriate" or seriously and unfairly burdensome or unjustifiably troubling to the defendant. The reasons are as follows: i. The defendant lives at 4561 Heathcote Rochester Road, Bonn, Victoria. The locality where her residence is located is a rural area approximately 70km from the nearest large town city, Bendigo. It takes approximately 2.5 hours' drive from her residence to Melbourne airport. (paras 3 (a) and 3 (c) of the affidavit of Tara Ward) ii. The defendants pre-existing medical conditions. She is a type 1 insulin-dependent diabetic who requires periodic hospitalisation due to her condition and related injuries. She is now using Continuous Glucose Monitoring for her blood sugar levels at added cost to herself to assist with her insulin needs as a type 1 diabetic. She cannot afford an insulin pump. Other injuries include nerve damage making long trips and interstate travel difficult to tolerate, especially on her own. Leaving her home would cause her significant anxiety and further stress which is seriously impacting the management of her medical conditions. (paras 3 (f), 3 (g) and 3 (h) of the affidavit of Tara Ward) iii. The defendants small family business has been affected severely due to the pandemic and she does not have the funds to pay for the trip, airfares or accommodation. She has used all of her savings on legal fees in defending this matter and now this matter is being run on a pro-bono basis. (paras 3 (j) and 3 (i) of the affidavit of Tara Ward) iv. The defendant`s witnesses reside in the State of Victoria. (para 4 of the affidavit of Tara Ward) v. The defendant's 86-year-old mother is in hospital and is being transferred to palliative care. End-of-life plans are in place for her mother. The defendant and her sister are responsible for supporting their father at this time. (para 3(e) of the affidavit of Tara Ward)."
It was open to the plaintiff to provide evidence of financial hardship, health problems or other such material, but he has not done so.
Mr Rasmussen submitted that I should not accept claims of financial hardship without an affidavit from the defendant herself, and that I should not accept third-hand accounts of asserted medical problems.
As more and more defamation actions are brought against ordinary members of the community, it has become increasingly common to see evidence of financial hardship and accounts of the distress the litigation causes. I noted some of these factors in JE v Central Coast Local Health District & Ors [2022] NSWDC 31 at [49]. Those factors are added to by the dangers of travel to health-compromised individuals due to the pandemic. Although Mr Rasmussen encourages me to disregard these factors in the absence of evidence, some weight must be given to health issues of this kind.
The defendant also raises hardship issues. The defendant's evidence is that she has spent all her money on legal advice for these proceedings. Whether her current pro bono assistance is to continue all the way to hearing is uncertain. I understand that this court's pro bono referrals procedure and the NSW Bar Association's pro bono scheme encounter great difficulty assisting a litigant in person who lives interstate. It is unlikely that the defendant can obtain pro bono assistance from Victorian lawyers for an action in a New South Wales court.
Taking all of the above into account, the factors in s 20(4)(c) favour the defendant.

Section 20(4)(d): agreements between the parties as to where the litigation is to be conducted

As is noted in Joshan, at [61] and [79] - [93], s 20(4)(d) relates to exclusive jurisdiction clauses. No such clause appears here.

Section 20(4)(e): the law most appropriate to be applied

The same law for defamation will apply in both jurisdictions. Mr Rasmussen submits that this is a factor strongly in favour of his client.
However, the misleading and deceptive conduct claim is not as straightforward. While there has been some publication outside Victoria, the choice of the correct court is a complex question because of the claim for relief under the Australian Consumer Law, for the reasons explained by Manousaridis J in Sarina v O'Shannassy [2009] FCCA 732 at [4] - [8]. At an earlier stage of the proceedings, Mr Rasmussen flagged an application to rely upon the relevant provisions of the Fair Trading Act 1987 (NSW), but that is not possible for publications made outside New South Wales (for the reasons explained in Ramsey & Ors v Vogler) and the plaintiff will need to identify the relevant legislation in each jurisdiction.
I note the observations of Bell P in Joshan at [60] as to the likelihood of similar legal principles because there is only one common law of Australia (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563), but that the situation is "different" where a Commonwealth or Uniform State statute is concerned, and different again "where the dispute involves a statute of a particular State with which the courts of the enacting State are likely to be most familiar and which has no equivalent in other States". This could relate not only to the ACL claim but also, for that matter, to what "puppy farming" is, as it is common ground that animal welfare legislation in Victoria is different to that in New South Wales.
The defendant has additionally raised challenges to the adequacy of the pleading of the ACL claim, particularly in relation to the publication to Campaspe Council, such as the failure to plead a connection between the statement(s) and the loss, and the question of whether publications in the course of a development application are made in the course of trade and commerce (Street & 7 Ors v Luna Park Sydney Pty Ltd & 3 Ors [2009] NSWSC 1; see also Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143 at [52] - [57]). That is not a question that is relevant to the issue of forum, but it is an indication of a potential issue of some complexity, which is relevant to the choice of court.
In conclusion, while Mr Rasmussen is entitled to submit that the law most appropriate to be applied to the defamation claim is the same in both jurisdictions, that is only one of the two causes of action. On balance, I consider that the factors favour the defendant.

Section 20(4)(f) and other factors

As to s 20(4)(f), there are no same or similar proceedings in terms of other litigation on foot. If there were, the unique nature of a claim for defamation, where leave may be required to commence further proceedings over the same subject matter (s 23 of the uniform legislation) and where commencing defamation actions in more than one jurisdiction may amount to abuse of process (Maple v David Syme & Co [1974] 1 NSWLR 297).
This demonstrates the importance of Bell P's observations (at [58]) that s 20(4) does not provide an exhaustive list of matters to be taken into account by a court in determining a stay application.
What other factors would these be? The main factor identified by Bell P is the availability of AVL, an argument put forward by Mr Rasmussen with great force.
However, the availability of AVL should not be used as a means of circumventing the requirements in s 20(4), for the reasons explained by Bell P in Joshan at [58]. AVL usage is an important factor, but it must be seen in the context of the other factors. In particular, as Bell P commented at [59], although the factors in s 20(4) are not exhaustive, they are nevertheless "the principal signposts to the appropriate forum", especially where issues such as the places of residence of the parties and of the subject matter of contention are "straightforward and uncontroversial" (at [60]).
The conducting of cases of this kind by AVL is difficult in terms of court resources and document maintenance. The need for the demeanour of witnesses to be observed would be a significant factor in relation to credit and malice issues. I do not consider that reliance upon AVL will solve all these problems.
Although not mentioned by the Court of Appeal in Joshan, another factor might be what J Forrest J called "the interests of the administration of justice" in McCready v Bendigo Health at [15], namely the interests of members of the community who are involved in community-related activities such as the making of objections to development proposals, use of land in the area in which they live, and the like. This is particularly relevant in defamation proceedings, for the reasons set out in Mirabella. Since Bell P specifically refers to the importance of this legislation in terms of "the administration of justice" (at [39]), I consider that this factor is relevant, and that it favours the defendant.
Another potential problem is whether the technicalities of defamation actions could in some way prevent the plaintiff from successfully bringing an application before a Victorian court to conduct those proceedings there. Could it be argued that there are problems under s 23 of the uniform legislation, or limitation problems? I was not addressed on such issues by the parties, however, so it is not appropriate for me to speculate.
Finally, in terms of case management principles, I have taken into account whether it is just, cheap and quick to make orders of this kind in a claim which is essentially a "backyarder", even in the literal sense, in that it is a claim between two neighbours.
No case should be seen as being too small or insignificant for the principles of justice to apply. This may seem like a small case to some, but it is possible that one or both of the litigants in this action could be financially ruined by the eye-watering costs routinely awarded in defamation actions. The defendant paints a graphic picture of what will happen if she is forced to conduct these proceedings in Sydney. In those circumstances, this factor also favours the defendant.

Conclusions concerning the defendant's application

For the reasons set out above, the factors to take into account, individually as well as jointly, favour Victoria as the forum for these proceedings.
In Joshan, Bell P listed the features warranting the making of such an order at [115]. That list bears a striking resemblance to the factors in this case, in terms of identifying the "centre of gravity" of the litigation. I do not, however, propose to set out all the factors again.
It is technically possible for the Court to determine that another Court is the suitable forum but to determine that the discretion to make such an order should not be exercised.
However, in the present case, there are compelling discretionary factors in relation to the defendant's health and financial circumstances which I consider militate in favour of the making of the stay order to which she is entitled on the merits of this application. There is no such evidence in relation to the plaintiff. If there had been, my approach to the exercise of discretion may have been different.

The position at common law

Ms Hart also brought her application on common law principles in relation to forum non conveniens.
I note the observations of Bell P concerning the interaction between s 20(4) and the common law approach to forum non conveniens in Joshan at [58] and [59].
I was not addressed by either counsel about any aspect of the common law approach to forum non conveniens which would lead to any different result.
In practical terms, given my findings as to s 20(4), it is not necessary for me to make findings on the common law principles. I briefly note, however, that, if I had, I would have made the same findings, given the strong connecting factors between the parties, the subject matter of the proceedings and the desirability of taking into account administration of justice issues.

What orders would be "just and appropriate"?

As is set out in Joshan at [114], unlike the cross-vesting scheme, a stay under s 20 of the SEPA does not operate to effect a transfer of proceedings to a court of another State or Territory. The appropriate orders to make are a stay of proceedings so that it is a matter for the plaintiff, if he wishes to pursue his claim against the defendant, to bring proceedings in Victoria.
Section 20(5) provides that any orders may be subject to such conditions as the court considers just and appropriate in order to facilitate determination of the issues without delay or undue expense. Two issues may warrant consideration. The first is whether I should make orders for the plaintiff's future conduct of this litigation in a specific Court and the second is the appropriate orders to be made in this court pending the litigation being continued in another court.
I was not addressed on these issues by either party, beyond Ms Hart nominating the County Court of Victoria as being the appropriate court.
With one exception, the appropriate orders are for the proceedings to be stayed pending further order and for the parties to bring in Short Minutes of Order reflecting the parties' agreed approach to the next stage of the litigation in Victoria. That one exception relates to the appropriate order for referral to a Victorian court or courts.

Referral to more than one court?

My concern to do justice between the parties is such that I propose, rather than decide upon the Court nominated by the defendant (the County Court) to adopt the course set out by Bell P in Joshan at [53] - [54], where referral to more than one court was referred to as a possibility, and the desirability of that court to be a Supreme Court is implicit. Bell P explained the procedure as follows: "Thirdly, the "court of another State" referred to in s 20(3) of SEPA and which a judge may be satisfied has "jurisdiction to determine all matters in issue between the parties" may be any court of another State, that is to say, it may include the Supreme Court of another State even though s 20 does not apply to proceedings issued out of a Supreme Court. That is to say, a District, County, Local or Magistrates Court proceeding could be stayed where the court of issue is satisfied that a Supreme Court of another State or Territory is "the appropriate court". Fourthly, where ss 20(3) and (4) refer to "the appropriate court for the proceeding", the use of the definite article might be thought to presuppose that there is only one court that is "the appropriate court" to determine all matters in issue between the parties. Courts of two (or more) States may, however, depending on the circumstances, be equally appropriate in which case the court of the other State will not meet the description of being the appropriate court, and the discretionary power to stay proceedings will not be engaged. To this extent, the appropriate court will be the court which is more appropriate than any other court, and what is the appropriate court is not necessarily co-extensive with what is the more convenient court: Re Featherstone Resources Ltd; Tetley v Weston (2014) 101 ACSR 394; [2014] NSWSC 1139 at [53]."
While Bell P was addressing these remarks to courts of two or more States, I see no reason why they should not also apply to more than one court in Victoria. As Bell P notes at [67], applications under s 20 are interlocutory in nature, which means it is possible for fresh applications to be brought as circumstances change and the suitability of courts correspondingly changes.
The next question is whether the Court should be the Supreme or County Court of Victoria. In Joshan, Bell P referred proceedings commenced in this court to the Supreme Court of South Australia without explaining why the District Court of South Australia, which had concurrent jurisdiction to hear the claim, was not nominated.
The question is whether I should nominate the particular court identified by Ms Hart, or leave this issue in the experienced hands of the Supreme Court of Victoria's Major Torts List Judge or, alternatively, the Defamation List Judge in the County Court.
Every confidence can be placed in the County Court of Victoria to case manage and to hear these proceedings. I also note that, unlike the court system in New South Wales, local courts in Victoria have jurisdiction to hear defamation claims (and I am mindful of the observations of White J in Dutton v Bazzi (No 2) [2021] FCA 1560). All these courts have country sittings.
However, this could be a complex cause of action. This is particularly the case for the ACL claim, in light of the striking out of an identically-pleaded claim in Sarina & Anor v O'Shannassy at [5] - [7]. If that part of the claim is struck out, these proceedings may well be more suitable for a lower court. However, I cannot make that assumption.
I do not have enough information about case management in Victoria to determine such issues, beyond noting with confidence the insightful concerns of Victorian courts at all levels, as is evidenced in the extracts from Mirabella cited above. Contrary to the animadversions of the solicitor for the plaintiff in her correspondence, the highest standards apply in defamation proceedings in all courts at all levels in Victoria and I feel certain this difficult issue is best left to the List Judge of the Major Torts List in the Supreme Court of Victoria.
Deferring to that Court's greater knowledge of the best venue, I propose to identify the Supreme Court of Victoria as the appropriate court in the orders set out below staying the proceedings in this court.

Service of further affidavit evidence by the defendant

At the end of the hearing, Ms Hart, appearing by AVL from her chambers at a site different to that of her instructing solicitor, stated that she had just received a text message from her client and wished to read it out. Concerned that this message might be privileged, I suggested Ms Hart defer relying upon it until such time as she could check on whether legal professional privilege had been waived and suggested she get advice from a colleague in chambers as to what to do. I then reserved judgment.
On 16 June 2022 the solicitors for the defendant served an affidavit from the defendant (who had not previously sworn any affidavit evidence in this application).
Mr Rasmussen replied at 11:42am on 17 June 2022: "Dear Associate, The reception of the affidavit by the Court is objected to. It is re-opening the defendant case and the manner in which it has been adduced after evidence has closed and after submissions have been completed and without the leave of the Court is grossly unfair to the plaintiff. The Court did not direct counsel for the defendant to do any such thing as is asserted. It was advice given to protect Counsel from the consequences of revealing in confidence communications without first seeking that that privilege be waived. Nothing in the affidavit asserts that any of the matters attested to in the affidavit were raised with counsel during conference prior to the motion having been heard. If any of the matters raised in the affidavit were relevant to the defendant's application they should have been in an affidavit served before the hearing. It arises only because of the submissions made by defendant's counsel at the hearing. Leave should have been sought first before sending it to the Court. The Court could have received argument on whether leave should have been given.
Mr Rasmussen is correct in his description of what occurred.
In Wollongong City Council v Papadopoulos [2019] NSWCA 178 (at [48] - [50]) and Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 (at [29] - [34]), Leeming JA deprecated the practice of providing additional submissions without leave. The position may be aggravated where the document served without leave is an affidavit, as this may require reopening of a case. For those reasons, I did not permit the defendant to rely upon the material set out in her affidavit.
I should mention, however, that this misunderstanding (for it is no more serious than that) is just the sort of problem that AVL has increasingly led to, and is one of the reasons why courts should be cautious about accepting submissions of the kind made by Mr Rasmussen, namely that AVL and technology confer unalloyed benefits on the legal system. In the course of conducting AVL hearings I have encountered an array of similar problems, largely resultant from fast-paced changes in technology and the difficulties legal representatives have in adapting their practice to these. Courts must be flexible in these difficult times.

Costs

I have reserved the issue of costs, with liberty to apply.

Orders: 1. Pursuant to s 20(3) of the Service and Execution of Process Act 1992 (Cth) (SEPA) and s 67 of the Civil Procedure Act 2005 (NSW), these proceedings are stayed pending further order, on the basis that the Supreme Court of Victoria is the appropriate court. 2. The parties have liberty to bring in Short Minutes of Order reflecting any necessary further steps to be taken in this court, including but not limited to the determination of the issue of costs. 3. Costs reserved, with liberty to apply.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2022

(2021) 106 NSWLR 104

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