(1) The Supreme Court of a State or Territory may, on the application of a party to a proceeding before an inferior court in that State or Territory, exercise the same power to make an order of the kind referred to in Division 1 for the purpose of that proceeding as the Supreme Court has under that Division for the purpose of a proceeding in the Supreme Court."
10 Nationwide News contends that even though this Court can exercise its powers under s 7 in relation to proceedings in the District Court, there was a high level of procedural complexity involved in arranging for evidence to be taken by video link from Croatia in the earlier proceedings and that there is a high likelihood that similar arrangements, attended by similar complications, will be required in the District Court proceedings. The logistical and procedural steps involved in this process are potentially increased when the proceedings are being conducted in a court other than the court with the power to make all of the necessary orders. Nationwide News submits that the proceedings are more likely to be conducted and resolved consistently with the object and purpose of Part 6 of the Civil Procedure Act if the proceedings are transferred to this Court.
11 Ex parte Heiliger (1897) 13 WN (NSW) 170, dealt with a similar application. That case considered a situation where the issue was whether there were significant procedural advantages to the transferee court. At 172 Cohen J said the following, citing Banks v Hollingsworth [1893] 1 QB 442 at 447-8:
"The question upon an application of this nature is whether, considering all the circumstances of the case and the interests of the parties and public justice, the case ought to be tried in the High Court rather than in that in which the action was brought, and the Judge who has to determine the question of removal must consider all the circumstances. He must consider the amount of the claim; it may be important if the amount claimed is very small, yet, if the case involves questions of a complex or highly difficult nature requiring the knowledge and experience of the Judges of the superior Court for their determination, the Judge may well be of the opinion that it should be tried in the superior Court. There are many other circumstances which would properly influence his decision as to the propriety of removal, such, for instance, as the Court in which justice will in the particular case be more speedily arrived at; for it might happen that in the superior Court a case involving some difficulty could not be reached for some months, yet the inferior Court might be perfectly able to try it and to try it at once. I do not say that upon any one of such points as I have suggested being clearly made out a Judge would be obliged to take either the one course or the other as regards the removal of the action; all that the clause means in my opinion is that the Judge must say, after a reasonable, judicial and careful consideration of the circumstances, whether an action ought rather to be tried in the High Court or in the Court in which it was brought; if he thinks it ought, he will grant the writ of certiorari for its removal; if he thinks it ought not, it will remain in the inferior Court; his conclusion may depend on many considerations, and must be a matter of discretion."
12 In addition to the way in which Nationwide News puts its case on this application is the faint suggestion by it that the subject matter of the proceedings warrants them being heard in this Court. There are defences of truth suggesting that Mr Vasiljkovic committed serious offences during an armed conflict and he contends that the District Court ought not to hear the case for that additional reason.
13 Mr Vasiljkovic's response to the application emphasises that the question of whether or not overseas witnesses are or may be required to give evidence has not yet clearly emerged so that consideration of the issue at this stage is to some extent premature. In any event, he contends that there are no considerations that would justify the transfer in this case.
Consideration
14 In my opinion the principal consideration is whether or not the proceedings could be heard in the District Court, having regard to the possible need to make international arrangements with Croatia, without undue disruption, difficulty, delay or added expense. The argument that it could not appears to suggest, because the District Court is not relevantly a superior court, that the necessary international requests and diplomatic intercessions could not be achieved either as conveniently as if the case were transferred to this Court or at all.
15 I disagree. The District Court retains a wide and extensive jurisdiction to hear all manner of significant litigation in this State. The present case is an example of an important and publicly interesting dispute that that court has the jurisdiction, the resources and the expertise to determine. It is not without significance that the Foreign Evidence Act specifically contemplates that applications under s 7 of that Act can be made by a party to a proceeding before an inferior court and that this Court in such circumstances can exercise the same power to make an order of the kind referred to in s 7 for the purpose of that proceeding as this Court has under that section for the purpose of a proceeding in this Court. I fail to see how the effectively extra-curial administrative arrangements that may be required for the taking of evidence from witnesses in Croatia will produce any procedural disadvantage of any kind to either party in this case. It is not clear that there will in fact be any disadvantage at all when regard is had to the fact that the arrangements are likely to be difficult no matter where the proceedings are conducted.
16 I do not consider that any "sound ground or … good reason why an order ought now to be made" has been established. The application should be dismissed with costs.