Shields v Williams

1. Proceeding QUD53/2019 in this Court be transferred to the Supreme Court of Queensland.
2. Costs of the proceedings up to the date of transfer be costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DERRINGTON J: 1 This is an application for an order transferring the present proceedings to the Supreme Court of Queensland. The proceeding is an action for defamation, and both parties consent to its transfer. It was commenced by an originating application filed on 16 January 2019. In paragraph 3 of the statement of claim filed with the originating application, the applicant pleads that various publications on Facebook were made in, amongst other places, the Australian Capital Territory and Queensland. 2 The Federal Court has jurisdiction in proceedings for defamation occurring in the Australian Capital Territory by operation of various legislative provisions referred to in Crosby v Kelly (2012) 203 FCR 451. Relevantly, that analysis requires the operation of, amongst various other enactments, section 4 of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT). 3 If the jurisdiction of this Court were not regularly invoked, it has been said that there would be no jurisdiction to make an order for transfer: Amalia Investments Ltd v Virgtel Global Networks NV (2011) 198 FCR 248. However, although the defence filed denies publication in the Australian Capital Territory as pleaded in paragraph 3, "[i]t is sufficient that the moving party claims that he or she has a legal remedy in the court where the proceedings have been commenced to enforce the right, duty or liability in question": Abebe v Commonwealth (1999) 197 CLR 510, 528 [32]. 4 The order for a transfer may be made under subs 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (the Commonwealth Cross-Vesting Act). That section provides: (4) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Family Court (in this subsection referred to as the first court); and (b) it appears to the first court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court; (ii) having regard to: (A) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross‑vesting of jurisdiction; and (B) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross‑vesting of jurisdiction; and (C) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub‑subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross‑vesting of jurisdiction; and (D) the interests of justice; it is more appropriate that the relevant proceeding be determined by that Supreme Court; or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory; the first court shall transfer the relevant proceeding to that Supreme Court. 5 The question calls for what might be described as "a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute": Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 714. In this case, the applicant has submitted that subs 5(4)(b)(iii) is engaged. It is possible that subs 5(4)(b)(ii) might also be engaged, but that was not pressed. 6 In respect of the question of the interests of justice, the applicant submits that this case qualifies for a transfer on the basis that it will reduce the costs of litigation, and because the parties consent, which is said to be an important factor: Central Queensland Development Corporation Pty Ltd (formerly Bluechip Development Corporation (Gladstone) Pty Ltd) v BMT & Assoc Pty Ltd [2015] WASC 195, [21]; Pittini v Metcash Food and Grocery Pty Ltd [2019] NSWSC 80, [13]. 7 The respondent, also in support of the cross-vesting order, submits that upon the transfer to the Supreme Court, the parties intend to apply for the matter to be heard in the District Court of Queensland at Brisbane. That is likely to result in a savings of costs. Further, he says that the alleged defamation is primarily of interest only to residents of particular parts of Queensland, so that a court of that State, although it might be mentioned this Court has a registry in that State, would be a better forum. Whether or not that is so is unnecessary to decide. 8 It has been noted in applications for transfer of defamation cases that such claims are traditionally heard and determined by State courts: Mansell v Cumming (1989) 86 ALR 637, 644. That said, such a proposition in more recent times only goes so far. Nevertheless, the more ready availability of a jury trial is certainly a relevant factor. In any case, given the potential saving of cost to the parties, and that where both parties consent, it can be inferred that there are advantages, and there are no relevant disadvantages, to each party, it is, in my opinion, in the interests of justice that the proceedings be transferred pursuant to s 5(4)(b)(iii) of the Commonwealth Cross-Vesting Act. The parties have agreed that the costs so far incurred ought be costs in the cause, and I agree that is an appropriate order. 9 It follows that the orders of the Court are: (1) Proceeding QUD53/2019 in this Court be transferred to the Supreme Court of Queensland. (2) Costs of the proceedings up to the date of transfer be costs in the cause. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.