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 44.5Cases 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 145Category: Procedural and other rulings Parties: Capilano Honey Ltd (first plaintiff)
Ben McKee (second plaintiff)
Simon Mulvany (defendant)Representation: Counsel:
Solicitors:
ATS Dawson SC, M Cowden (plaintiffs)
Defendant self-represented
Addisons Lawyers (plaintiffs)
File Number(s): 2016/48481 Publication restriction: None
Judgment
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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.
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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
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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.
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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…
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- Case
- [2018] NSWSC 767
- Decision Date
CaseChat Overview and Summary
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.
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