Khoury v Kirwan - [2020] VSC 466

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 01434

ELIE KHOURY	Plaintiff
v
DAVID KIRWAN	Defendant

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JUDICIAL OFFICER:	Judicial Registrar Clayton
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2020
DATE OF RULING:	30 July 2020
CASE MAY BE CITED AS:	Khoury v Kirwan
MEDIUM NEUTRAL CITATION:	[2020] VSC 466

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PRACTICE AND PROCEDURE – Application to transfer proceeding to New South Wales – Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 5 – Whether in the interests of justice to transfer – Irwin v State of Queensland [2011] VSC 291 and Hackett v State of South Australia [2019] VSC 311 referred to – Where alleged torts occurred, and alleged harm suffered in border towns of Albury and Wodonga – Relevant connecting factors – Location of witnesses a neutral factor – Applicable law neutral where uniform defamation law applies – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr JA Castelan	Litton Legal
For the Defendant	Ms S Chrysanthou with Ms S Ross	Kennedys (Australasia) Pty Ltd

JUDICIAL REGISTRAR:

By Writ filed 23 March 2020 and by his Amended Statement of Claim filed 30 June 2020, the plaintiff, Mr Elie Khoury claims that the defendant, Mr David Kirwan, defamed him by making a number of oral and written statements. He claims damages, aggravated damages, and interest and seeks an injunction restraining the defendant.

At the time of the alleged defamatory statements, both the plaintiff and the defendant were orthopaedic surgeons practicing in the Albury/Wodonga region.

By summons filed 17 June 2020, the defendant seeks an order, pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) (‘the Act’), transferring this proceeding to the Supreme Court of New South Wales. Section 5(2) of the Act relevantly provides:

(2)Where -
(a)     A proceeding (in this sub-section referred to as the ‘relevant proceeding’) is pending in the Supreme Court (in this sub-section referred to as the ‘first court’); and
(b)     It appears to the first court that -
(i) . . .
(ii) . . .
or
(iii)     it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory -

the first court shall transfer the relevant proceeding to that other Supreme Court.

In Irwin v State of Queensland,[1] Robson J helpfully summarised the relevant principles as follows (omitting citations):
[1][2011] VSC 291, [14].

(a)The Act requires that the [first] court should exercise the power of transfer whenever “it appears” that it is in the interests of justice that it should be exercised.
(b)It is not necessary that it should appear that the first court is a “clearly inappropriate” forum. It is both necessary and sufficient that it appears that, in the interests of justice, the second court is more appropriate than the first court.
(c)The Court is not concerned with the problem of a court, with a prima…

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: [2020] VSC 466
Decision Date: 30 July 2020

CaseChat Overview and Summary

Khoury v Kirwan involved an application to transfer proceedings from the Supreme Court of Victoria to the Supreme Court of New South Wales. The plaintiff, Khoury, sought damages for defamation against the defendant, Kirwan, who is alleged to have made defamatory statements about Khoury. The dispute arose out of comments made and published in both Albury, Victoria, and Wodonga, New South Wales, towns located on the border of the two states. The primary issue before the court was whether it was in the interests of justice to transfer the case to New South Wales under section 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic).

The court considered the factors relevant to determining whether a transfer was warranted, including the location of the alleged torts, the location of the harm, and the location of witnesses. The court also noted that the defamation law in both states was uniform, which meant the choice of law was not a decisive factor. The decision in Irwin v State of Queensland and Hackett v State of South Australia were referenced to assist in weighing these factors. After considering these factors, the court concluded that the application to transfer the proceedings to New South Wales should be refused.

In reaching its decision, the court determined that while the alleged defamatory statements were made in both Albury and Wodonga, the location of the harm and the witnesses were not decisive. The court also found that the uniform defamation law in both jurisdictions was a neutral factor. The court determined that keeping the case in Victoria, where the plaintiff resides and where one of the alleged defamatory acts occurred, was in the best interests of justice. Therefore, the application to transfer the case to New South Wales was dismissed.

No further orders were made by the court in this regard.

Orders