Capilano Honey Ltd v Mulvany (No 3) - [2018] NSWSC 767

Supreme Court

New South Wales

Medium Neutral Citation: Capilano Honey Ltd v Mulvany (No 3) [2018] NSWSC 767
Hearing dates: 5, 18 May 2018
Date of orders: 30 May 2018
Decision date: 30 May 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1897 (NSW), that the proceedings be transferred to the Supreme Court of Victoria

Catchwords: JURISDICTION – cross-vesting – application to have proceedings transferred to Supreme Court of Victoria – consideration of relevant factors – delay – jurisdictional nexus – expense and inconvenience – where plaintiffs filed motion after listing of cross-vesting motion to have defendant dealt with for contempt of interlocutory orders – importance of procedural fairness to defendant facing allegations of contempt
Legislation Cited: Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), s 5(2)
Service and Execution of Process Act 1992 (Cth), ss 15, 17
Supreme Court Rules 1970 (NSW), r 74.8
Uniform Civil Procedure Rules 2005 (NSW), r 44.5
Cases Cited: Capilano Honey Ltd v Mulvany (No 2) [2017] NSWSC 1237
Capilano Honey Ltd v Mulvany [2017] NSWSC 833
Dow Jones v Gutnick (2002) 210 CLR 575; [2002] HCA 56
In the matter of Nail Fairy Bulimba Pty Ltd [2018] NSWSC 446
Jackson v John Fairfax & Sons Ltd (1988) 96 FLR 145
Category: Procedural and other rulings
Parties: Capilano Honey Ltd (first plaintiff)
Ben McKee (second plaintiff)
Simon Mulvany (defendant)
Representation:
Counsel:
ATS Dawson SC, M Cowden (plaintiffs)
Defendant self-represented
Solicitors:
Addisons Lawyers (plaintiffs)

File Number(s): 2016/48481
Publication restriction: None

Judgment

HER HONOUR: These are proceedings in injurious falsehood and defamation arising out of the publication of material on the internet by a Victorian beekeeper, Mr Simon Mulvany, about the sale of honey in Australia. The plaintiffs are Capilano Honey Ltd and its Chief Executive Officer, Mr Ben McKee. Capilano Honey is a publicly listed company registered in Queensland and having its head office in Brisbane. Mr McKee also works and lives in Brisbane.
This judgment determines an application by Mr Mulvany to have the proceedings transferred to Victoria, where he lives.

Circumstances in which the application is brought

The proceedings have taken what might be considered an unusual course. The action was commenced by summons filed in this Court on 15 February 2016. On that date, the plaintiffs made an ex parte application to the duty judge for an order under s 15 of the Service and Execution of Process Act 1992 (Cth) permitting service of the originating process in another State (Victoria). They also sought an order under s 17 of that Act abridging the time within which Mr Mulvany would be required to enter an appearance. The basis for seeking that abridgment of time was the alleged urgency of the interlocutory relief sought: cf s 17(2) of the Act.
The matter was stood over to 23 February 2016 for an application by the plaintiffs for interim injunctions requiring Mr Mulvany to remove certain articles from the internet and restraining him…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 767
Decision Date: 30 May 2018

CaseChat Overview and Summary

The applicants, Capilano Honey Limited, sought to transfer their proceedings from the Federal Circuit Court to the Supreme Court of Victoria, raising a jurisdictional challenge concerning the defendant's compliance with interlocutory orders. The defendant, Mulvany, opposed the transfer, arguing the application was an abuse of process due to procedural irregularities and the potential prejudice to his right to a fair hearing. The court had to determine whether the motion to transfer jurisdiction was appropriate under the cross-vesting provisions and whether it was fair to proceed in this manner given the outstanding allegations of contempt against the defendant.

The legal issues revolved around the appropriate exercise of cross-vesting jurisdiction, the timing and procedural fairness of the transfer application, and the impact of the transfer on the defendant's rights. The court examined whether the application was made in good faith and whether it was just and convenient to transfer the case. It also considered the delay caused by the applicants in filing the transfer motion and the potential prejudice to the defendant, who faced separate allegations of contempt.

The court found that the motion to transfer jurisdiction was not an abuse of process, and the applicants' delay in filing the motion did not preclude the transfer. The court emphasised the importance of procedural fairness and considered the defendant's right to a fair hearing in light of the allegations against him. It concluded that the transfer was appropriate given the jurisdictional nexus and the overall convenience and efficiency of the proceedings. The court ordered that the proceedings be transferred to the Supreme Court of Victoria, with specific directions to ensure the defendant's rights were protected in light of the ongoing contempt allegations.

Orders