Ieremia v Skalkos

[1999] NSWSC 315

CITATION:

Ieremia v Skalkos & Anor [1999] NSWSC 315

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20911 of 1997

HEARING DATE(S):

19 March 1999

JUDGMENT DATE:

19 March 1999

PARTIES :

ROSE IEREMIA
(Plaintiff)

v

THEO SKALKOS
(First Defendant)

FOREIGN LANGUAGE PUBLICATIONS LIMITED
(Second Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	R McColl S.C. A Henskens (Plaintiff) S Littlemore Q.C. J Gibson (Defendants)
SOLICITORS:	Xenos Jordan (Plaintiff) Mr T Lazaropoulos Legal Counsel Foreign Language Publications Pty Limited (Defendants)
CATCHWORDS:	Transfer to District Court
ACTS CITED:	District Court Act, 1973
DECISION:	See paragraphs 11 and 12

DLJ : 3
(Ex Tempore - Revised)

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 20911 of 1997

JUSTICE DAVID LEVINE

FRIDAY 19 MARCH 1999

ROSE IEREMIA
(Plaintiff)

v

THEO SKALKOS
(First Defendant)

FOREIGN LANGUAGE PUBLICATIONS LIMITED
ACN 000 731 706
(Second Defendant)
JUDGMENT (Transfer to District Court)

1 HIS HONOUR: Section 143 of the District Court Act, 1973 provides for the transfer of proceedings from this Court to the District Court. Section 143(4) provides that if the plaintiff in the proceedings applies for a transfer of the proceedings under the section, the defendant is not permitted to oppose the application. The Supreme Court however, for any reason appearing to it as sufficient but having due regard to the provisions of s 145, (which section relates to the transfer of proceedings to the Supreme Court), may decline to make the order sought.
2 It is the plaintiff who makes the application before this Court today for the transfer of her action to the District Court. That being so, the position is reached where simply the matter is either transferred or if there are reasons appearing to be sufficient, the Court may decline to make the order sought.
3 Whether it be necessary or not, the plaintiff has filed an affidavit by her solicitor in support of the application deposing to inquiries made of the District Court registry and the Associate to Christie DCJ of that Court in relation to the likelihood of her action being heard in that Court as an action “ ready to be heard” . The evidence indicates that on that basis the probabilities are that it could be listed for hearing in that Court in August.
4 The action cannot be said, as at today, 19 March 1999, to be “ ready for hearing" in the sense that there are some outstanding interlocutory matters. But, even taking that into account, in the light of the evidence, it seems to me that the action should be transferred and what purports to be opposition to it, notwithstanding the terms of the section, is rather extraordinary. One would think that there is anxiety in all parties that the litigation be heard and determined if it cannot otherwise be resolved. One would think that both sides would have an interest in the diligent prosecution of any outstanding interlocutory matters to achieve that end. The Court would be loathe to conclude that one side or the other would deliberately take steps to thwart the attainment of justice for one side or the other by a case being listed for hearing and heard.
5 An application for expedition was made by the plaintiff before me on 2 February and declined on 17 February this year. I do not see anything turning on that and I certainly would not embark upon speculation that one of the reasons for Ms Ieremia seeking to have her action heard in the District Court is to avoid an order for security for costs.
6 As indicated during the course of submissions and discussions, the plaintiff is the Consul-General for Greece. Her action arises from publications in the press of what, as a matter of general knowledge, must be regarded as one of the major foreign language community publications in this State, if not in this country. The imputations against the plaintiff relate principally to her conduct as a diplomatic officer, though there are others that do not. The status of the plaintiff as a diplomatic officer in an action against an instrument of mass communication concerning imputations against her in her professional capacity as a representative of a foreign nation, might be thought, in the normal course, to satisfy criteria for the retention of such a case in this Court. But recognition is to be given to a right that the plaintiff has to move the Court for an order under s 143 of the District Court Act .
7 It has been suggested that one reason why I would decline to order the transfer is the status of the defendant as a cross-claimant. There would have to be something extraordinary and exceptional in the circumstances of a cross-claim for the existence of such a process by itself to preclude the transfer of an action brought by a plaintiff, a fortiori when the subsection specifically refers to the plaintiff as the party entitled to the relief sought.
8 Another factor that is taken into account in determining whether or not to transfer an action and one that certainly was of importance prior to the 1997 amendment, was the existence in this Court of the Defamation List and the perception that it functioned smoothly and efficiently to aid the preparation of litigation with a view to the attainment of justice as quickly and as efficiently as possible ( Brown v Mirror Newspapers Limited (1983) 2 NSWLR 80; Haines v AFFC & Anor (Levine J, 12 December 1997); Murrihy v Radio 2UE Pty Limited (Levine J, 11 November 1998)). The District Court, whilst on the evidence before me, and I have no other information about the matter, does not have an equivalent list. The evidence indicates that there has been allocated to deal with defamation matters, a judge of that Court who is well-known to be experienced in this area of the law.
9 Shortly stated, we have a plaintiff here who wishes to have her action transferred to the District Court. She does so on the basis of information that the chances of it being heard in that Court earlier than it would be heard in this Court, are fairly high. I do propose to make an order under s 143 of the Act.
10 It must be clear, and it is stated that at the time of the making of the order, the action is not “ ready to be heard ” but that does not preclude the making of the order and it certainly does not provide any basis for the parties doing otherwise than diligently pursuing any outstanding interlocutory steps in the District Court.
11 I, accordingly, pursuant to s 143 of the District Court Act , order that these proceedings be transferred to that Court.
12 An application by the plaintiff is now made for costs of the proceedings which I have just determined. The section of the Act under which the plaintiff has succeeded, specifically excludes the defendant from opposing the application. The defendant was asked by me, at Mr Littlemore's suggestion, to offer assistance as to why I might decline to make the order. I think it is appropriate that the costs order be the plaintiff's costs be costs in the cause.
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Last Modified: 04/08/1999