Khoury v Kirwan
[2020] VSC 466
•30 July 2020
| 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 facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.
(d)The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so the interests of the respective parties, which might in some respects be common (as for example cost and efficiency) and in other respects conflicting, arise for consideration.
(e)The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.
(f)It is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. Rather the jurisdiction must be exercised when “it appears” to the court that “it is in the interests of justice” that the proceeding be determined in the Supreme Court of another State or Territory rather than the court of where the proceeding has been issued. Unless it so appears, the court does not have power under the Act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion.
(g)The court should adopt what has been described as a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute.
(h)The appropriate court is the natural forum as determined by connecting factors to that forum.
(i)Relevant connecting factors include matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.
(j)In many cases there will be a preponderance of connecting factors with one forum so that it can readily be identified as the most appropriate of natural forum. In other cases, there might be significant connecting factors with each of the two different forums. Some of the factors might cancel each other out.
(k)If the action is between two individuals, and the plaintiff resides in one area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although it would ordinarily be the residence of the defendant that is important to establish jurisdiction.
(l)Factors which may be relevant to a tortious action are:
(i) The place where the wrong occurred.
(ii) Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.
(iii) The convenience of the parties and witnesses. However in this day and age this factor may not carry substantial weight because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because the provision of evidence by audio visual link.
(iv) The law governing the proceeding.
(v) experience of a particular court and its ability to provide an efficient and speedy trial, for example a court with a particular evidentiary and procedural rules hearing particular types of cases.
(vi) The condition of a party, for example, in a personal injury case where life expectancy of the plaintiff is limited requiring a speedy outcome.
(m)As a general rule significant weight is to be attached to the place of the tortious wrong and the residence of the parties in a personal injury claim arising out of a claim in tort. Where the place of the tort and the residence of the parties coincides, this will generally be determinative of the issue of the appropriate court although other factors may need to be assessed in the process of determining where the interests of justice lie.
(n)A relevant factor is whether the coincidence of the lex fori and the lex loci delicti will avoid debates concerning substantive and procedural law.
(o)The plaintiff’s choice of forum by itself is not a relevant connecting factor.
(p)Each case depends on its own particular facts.
(q)The list of connecting factors is impossible to state exhaustively. Equally the weight to be given to each factor must vary from case to case.
The defendant relies on affidavits of Mr Patrick George filed 17 July 2020, 15 July 2020 and 13 July 2020.
The plaintiff relies on affidavits of Ms Rebecca Litton filed 10 July 2020 and 1 July 2020.
I do not believe that there is any particular controversy between the parties as to the facts and the content of the affidavits.
The facts are that the plaintiff resides and practices in Albury, New South Wales though he has purchased a property in Melbourne and has set up practicing rooms in metropolitan Melbourne with the intention of moving to Melbourne later this year.
The defendant is also resident in Albury and practices in Albury.
The witnesses likely to be called in the case reside in both Albury and Wodonga, and in some instances in other parts of New South Wales or Victoria or in other states. The parties agreed that the location of the witnesses was of little or no weight given the likelihood that any witness could give evidence remotely, regardless of the location of the trial.
The solicitors for the plaintiff have offices in Albury, Melbourne and Sydney. The plaintiff has retained counsel from Melbourne.
The defendant has appointed solicitors and counsel from Sydney.
The defamations alleged included oral statements in New South Wales, emails received in New South Wales and emails received in New South Wales and Victoria.
Defendant’s submissions
The defendant submits that the relevant law governing this proceeding will be New South Wales’ law, and that, in addition to the Defamation Act2005 (NSW), the following legislation is, or may be relevant:
(a) Private Health Facilities Act 2007 (NSW); and/or
(b) Health Practitioner Regulation National Law (NSW) No 86a, as enacted in New South Wales by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW).
The defendant says that the subject matter of the pleaded defamations concern patient care in Albury. Although he has not pleaded where the harm to his reputation occurred, as he was only practicing in New South Wales at the time, New South Wales is the location where any harm must be considered to have arisen.
The defendant submits that Bateman and Idameneo (No. 123) Pty Limited v Fairfax Media Publications Pty Limited & Ors[2] establishes that the factors to be taken into account in considering whether it is in the interests of justice to transfer the proceedings include the place of the tort, the location of the parties, and the witnesses and the applicable legislation. In this case, the torts occurred largely in New South Wales, the parties are in New South Wales, the witnesses are predominantly in New South Wales or just over the border in Wodonga, and the applicable legislation is New South Wales’ legislation.
[2][2013] ACTSC 72, [61]-[71].
The defendant points to the decision of Daly AsJ in Hackett v State of South Australia[3] which requires the Court to determine which forum has the most ‘real and substantial connection’ to the proceedings, and asserts that the connecting factors should be identified. The defendant says that New South Wales clearly has the most real and substantial connection to the proceeding and it is in the interests of justice to transfer the case to New South Wales.
[3][2019] VSC 311, [5]-[8].
The defendant also submitted that additional costs would be incurred by the defendant and other non-parties to the claim who are located in New South Wales but who have to respond to, amongst other things, subpoenas to a Victorian court. Interstate lawyers will be required to appoint local agents to act which will inevitably drive up costs.
Plaintiff’s submissions
The plaintiff says that there is no exercise of a discretion by the Court in an application of this nature.[4] Rather, the Court shall transfer a matter where it is in the interests of justice to do so. It is not merely a question of convenience and the Court must have regard to the ‘nuts and bolts’ of case management in making a decision.
[4]BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Irwin v Queensland [2011] VSC 291,[14]; Sedman & Associates Pty Ltd v Morgan Stanley Wealth Management Australia Pty Ltd [2013] VSC 549, [32].
The plaintiff says that the location of witnesses is largely immaterial as any witness can appear by remote means from any location.
Further, the applicable law is a neutral consideration, as the uniform defamation law applies in both jurisdictions and, in any event, it is not accepted that New South Wales’ law is the appropriate law to apply to all the alleged defamations. The other legislation to which the defendant refers is unlikely to be relevant to the proceeding in any meaningful way.
To the extent that there is any argument as to costs, the plaintiff notes that the defendant chose to appoint Sydney lawyers and New South Wales’ counsel and that there is no evidence before the Court that other parties will incur additional costs responding to a subpoena in Victoria than in New South Wales.
Finally the plaintiff submits that there is no evidence of any prejudice to the defendant if the proceeding remains in Victoria, however there is evidence of prejudice to the plaintiff, who has put on evidence of his intention to move to Victoria.
Consideration
The reality is that the alleged defamations occurred in a region that is on the border of New South Wales and Victoria. Either New South Wales or Victoria could have been an appropriate forum in which to issue the proceeding.
The Albury/Wodonga area is geographically closer to Melbourne than to Sydney. The torts are alleged to have occurred in both New South Wales and Victoria. It is artificial to assume that any damage to the plaintiff’s reputation would be confined to one side of the Murray River, particularly in a community where it is not uncommon for people to live on one side and work on the other. Any torts committed, and any harm sustained occurred in the Albury/Wodonga Region, which has a far more ‘real and substantial’ connection to this action than either Melbourne or Sydney.
The location of witnesses and the applicable law are neutral considerations.
I am not persuaded that there is a real risk that costs are increased for non-parties by maintaining the proceedings in Victoria.
There may be some prejudice to the plaintiff if the proceeding was moved to Sydney, however this is not a consideration to which I gave much weight. The ‘nuts and bolts’ of case management in the Supreme Court of Victoria would mean that, given the facts in this case, there is a real prospect that the matter will be listed for trial in Wodonga during the annual Supreme Court of Victoria circuit there.
Having considered the principles and the facts of this case, I am not persuaded that it in the interests of justice to transfer the proceeding.
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