Chehade v Mihailuk

[2014] NSWSC 228

Supreme Court

New South Wales

Medium Neutral Citation:

Chehade v Mihailuk [2014] NSWSC 228

Hearing dates:

3 February 2014

Decision date:

03 February 2014

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

1. Pursuant to s 146(1) of the Civil Procedure Act 2005 (NSW), order that these proceedings be transferred to the District Court.

2. Order that the costs of the parties be costs of the cause in the District Court.

Catchwords:

DEFAMATION - transfer to District Court - no question of principle.

Legislation Cited:

- Civil Procedure Act 2005 (NSW), s 146(1)

Category:

Interlocutory applications

Parties:

Rabie Chehade (Plaintiff)
Tania Mihailuk (Defendant)

Representation:

Counsel:
R. Rasmussen (Plaintiff)
Mr Lange (Defendant)
Solicitors:
Auscorp Solicitors & Conveyancers (Plaintiff)
Lawyers Corp (Defendant)

File Number(s):

2013/272663

ex tempore Judgment

1. These proceedings involve an alleged defamatory utterance by the defendant, a member of State parliament, while attending a polling booth open for voting for local council elections.

1. The material before the Court, such as it is, does not suggest that the utterances, if made, were conveyed to a particularly significant number of people. Again from the material presently before the Court, it appears that the main issue in the proceedings is purely one of fact, namely whether the defendant in fact uttered the words complained of.

1. The matter is now said to be ready, or close to being ready, to a hearing date. The Registrar referred the matter to me, sitting in the Defamation List, for the parties to show cause why it should not be transferred to the District Court. It is, in my view, reasonably obvious that even if the plaintiff was successful, that the level of damages that he is likely to recover would be well under the District Court's jurisdictional limit.

1. Bearing in mind the extent of the publication of the matters complained of and what is the likely level of damages, I am satisfied that these proceedings could have been commenced in the District Court.

1. The question then arises whether it is appropriate to order their transfer.

1. Mr Rasmussen, counsel for the plaintiff, opposes that course on a number of grounds. He submits that there is no rule that defamation based on oral statements should necessarily be sent to the District Court, whereas more extensive or permanent defamatory statements should stay in this Court. He also submitted that a party who was successful in the District Court would not achieve the same level of vindication that they might if they were successful in this Court, this being a superior court of record. Given that the matter is ready to take a hearing date, he submits that it would be inconvenient to the parties to transfer the proceedings as foreshadowed by the Registrar.

1. I do not accept that there is any lesser level of vindication that is obtained by a plaintiff if they are successful in the District Court at trial level, as opposed to being successful in this Court at trial level.

1. Otherwise, notwithstanding the matters raised by Mr Rasmussen, I consider it is appropriate that these proceedings be transferred to the District Court. This is so for the reasons I have already indicated, namely the more ephemeral nature of the publication and the limited number of persons it was published to. Otherwise no particularly novel or complex question of fact or of law that might warrant the matter staying in this Court is raised by this matter. The District Court has a well established expertise in defamation matters. In my view this is a matter that it is quintessentially suited to adjudicate upon.

1. Finally, in terms of the inconvenience to the parties of obtaining a hearing date, from what I know of this Court's lists, the fixing of a hearing date in the reasonably foreseeable future is extremely unlikely. If the matter is ready to take a hearing date in this Court, then it is ready to take a hearing date in the District Court.

1. According, pursuant to s 146(1) of the Civil Procedure Act 2005 (NSW), I order that these proceedings be transferred to the District Court.

1. I order that the costs of the parties be costs of the cause in the District Court.

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Decision last updated: 06 August 2018