Lockyear v Niehus - [2015] SASC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
LOCKYEAR & ORS v NIEHUS & ANOR
[2015] SASC 74
Judgment of The Honourable Justice Lovell
19 May 2015
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - WHERE APPROPRIATE AND IN INTERESTS OF JUSTICE
Application by plaintiffs for transfer of proceedings under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) to the Supreme Court of Western Australia. Whether it is in the interests of justice for the proceedings to be heard and determined by the Supreme Court of Western Australia.
Held (allowing the application): it is in the interests of justice for the proceedings to be heard in Western Australia as opposed to South Australia.
Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) s 5(2)(b)(iii), referred to.
BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Cini v Pets Paradise Franchising (SA) Pty Ltd (2008) 102 SASR 177; Australian Rail Track Corp Ltd v Mineral Commodities Ltd & Anor [2006] SASC 27; Ausfert Pty Ltd & Anor v Superfert Dongbu Pty Ltd & Anor [2014] SASC 157, considered.

LOCKYEAR & ORS v NIEHUS & ANOR
[2015] SASC 74
Civil: Application
LOVELL J.
Overview

During 2013 Mr Niehus was employed as the General Manager of Settlers House Motel/Hotel situated in York, Western Australia. York is a township 97 km east of Perth. A dispute arose as to his performance as General Manager as a result of which a number of allegedly defamatory emails were sent to various people by Mr Lockyear, Mr Carter and Mr Holyoak. Mr Niehus eventually left Western Australia and now resides in South Australia. He and his wife Mrs Niehus instituted proceedings in the District Court of South Australia for defamation against Mr Lockyear, Mr Carter and Mr Holyoak. The defendants pleaded in their defence, the defences of justification/truth, honest opinion/fair comment, and qualified privilege.
In the civil jurisdiction of the Magistrates Court of Western Australia, Mr Niehus has been sued by the legal owners of the complex, for damages for breach of contract relating to his management of the Settlers House complex. Many of the allegations in that action are the subject of discussion in the emails the subject of the defamation claim. Evidence of the alleged breaches of contract by Mr Niehus may well be relevant to the defences pleaded in the defamation action.
The defendants in the defamation action seek to have the District Court matter transferred to the Supreme Court of South Australia and then the proceedings cross-vested to Western Australia.
Evidence
Mr Lockyear, in his affidavit of 18 December 2014, exhibited a copy of the District Court proceedings. He refers in the affidavit to the people who would be required to give evidence relating to the defences pleaded. The witnesses mentioned, with a couple of exceptions, reside in Western Australia. There are up to 40 potential witnesses listed. Mr Lockyear also exhibited a medical report…

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: [2015] SASC 74
Decision Date: 19 May 2015

CaseChat Overview and Summary

In the case of Lockyear v Niehus, the defendants sought to transfer the defamation proceedings from the District Court of South Australia to the Supreme Court of Western Australia under the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA). The defendants argued that the interests of justice required the matter to be heard in Western Australia due to the number of witnesses residing there and the health conditions of the defendants. The court accepted the affidavits of the defendants without requiring cross-examination and focused on the principle of cross-vesting as outlined in the High Court decision of BHP Billiton Ltd v Shultz and further explained in Cini v Pets Paradise Franchising (SA) Pty Ltd.

The court was required to determine whether it was in the interests of justice to transfer the proceedings to Western Australia, considering the location of witnesses and the health conditions of the defendants. The court noted that the question was not whether the District Court was an inappropriate forum but rather whether the Supreme Court of Western Australia was more appropriate in the interests of justice. The court was also required to consider the broader interests of justice, not merely the interests of any one party. The court applied the principle that the interests of justice are not necessarily the same as the interests of any one party and that no specific emphasis can be given in favour of the choice of forum made by the plaintiff.

The court concluded that it was in the interests of justice to transfer the proceedings to the Supreme Court of Western Australia. The court found that the large number of witnesses residing in Western Australia and the health conditions of the defendants, particularly Mr Lockyear’s severe spinal condition and Mr Niehus’s back injury and psychological problems, supported the transfer. The court also considered the potential financial hardship to Mr Niehus if the matter was not transferred. The court held that the Supreme Court of Western Australia was the more appropriate forum for the proceedings. The court ordered the transfer of the proceedings to the Supreme Court of Western Australia and cross-vested them under the relevant legislation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The defendants in the defamation action seek to have the District Court matter transferred to the Supreme Court of South Australia and then the proceedings cross-vested to Western Australia.Evidence Mr Lockyear, in his affidavit of 18 December 2014, exhibited a copy of the District Court proceedings. He refers in the affidavit to the people who would be required to give evidence relating to the defences pleaded. The witnesses mentioned, with a couple of exceptions, reside in Western Australia. There are up to 40 potential witnesses listed. Mr Lockyear also exhibited a medical report from Dr Daykin which states that Mr Lockyear is not medically fit for prolonged sitting, such as a flight, due to a chronic and severe spinal complaint. Mr Niehus, in his affidavit of 26 February 2015, disputes the assertion as to the number of witnesses that would be called relating to the emails. Also, like Mr Lockyear, he exhibits medical reports suggesting that he also suffers a back injury that restricts his travel. He also has stress-related psychological problems and these make travel difficult for him. Mr Niehus asserts that the trial, if transferred to Western Australia, would be conducted in Perth. He asserts that he has received messages threatening his physical well-being from one of the defendants and also a unit-holder. Also, Mrs Niehus currently has health problems. Mr Niehus asserted that he is a man of modest means and that if the matter is transferred to Western Australia he will suffer an increase in his legal fees and this will cause severe financial hardship. Mr Lockyear and Mr Niehus were not required for cross-examination. I accept the contents of their affidavits.Law There was no dispute before me as to the applicable law in this case. The application is that the proceedings be transferred to the Supreme Court of Western Australia under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) (“the Act”).(2) Where—(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court); and (b) ... (not relevant)(iii) it appears to the first court that 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. The leading case on cross-vesting, and in particular on the meaning of “interests of justice”, is the decision of the High Court in BHP Billiton Ltd v Shultz.[1] The principles were conveniently summarised by Bleby J in Cini v Pets Paradise Franchising (SA) Pty Ltd[2] as follows:·It is not relevant to ask whether this Court is justified in refusing to exercise the jurisdiction conferred on it. Rather, it must ensure that the case is heard in the forum dictated by the interests of justice.·The question is not whether this Court is an inappropriate forum. It is both necessary and sufficient that, in the interests of justice, the other court is more appropriate.·The court is required to ensure that cases are heard in the forum dictated by the interests of justice. It is not a question of the exercise of a discretion.·The interests of justice are not necessarily the same as the interests of any one party.·Because it is necessary to identify the more appropriate forum, no specific emphasis can be given in favour of the choice of forum made by the plaintiff.·It is inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.[1] (2004) 221 CLR 400.[2] (2008) 102 SASR 177, 183-184.

Decision

Reasons for decision

LOVELL J

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Ratio Decidendi

Legal Principle Established

Established by: LOVELL J

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