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 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.
In Australian Rail Track Corp Ltd v Mineral Commodities Ltd & Anor,[3] Debelle J compiled a list of considerations relevant to the “interests of justice” question. They were as follows:
·application of substantive law;
·forensic advantage or detriment conferred by procedural law;
·a choice made by a plaintive of a forum and the reasons for that choice;
·substantive connections with the forum;
·balance of convenience to parties and witnesses; and
·convenience to the court system.
[3] [2006] SASC 27 at [21]. See also, Ausfert Pty Ltd & Anor v Superfert Dongbu Pty Ltd & Anor [2014 SASC 157.
As was stated in BHP Billiton Ltd v Schult
z[4] the ultimate question is: which is the more appropriate forum, upon a fair balancing of all the factors defining the relevant “interests of justice”.[5]
[4] (2004) 221 CLR 400.
[5] (2004) 221 CLR 400, 424.
Submissions
It was accepted during the course of submissions that Mr Lockyear and Mr Niehus (and Mrs Niehus) had medical conditions that made lengthy travel difficult. It was conceded that if the trial was held in Perth or Adelaide, AVL facilities could be used and thus restrict the amount of travel.
It was also common ground that the causes of action in both the District Court matter and the Magistrates Court matter arose in Western Australia. The law of Western Australia would apply. There was no relevant difference in the law between South Australia and Western Australia in either action.
It was also accepted during the course of submissions that a number of the witnesses to be called (apart from the parties) lived in Western Australia. Mr McCarthy, counsel for Mr and Mrs Niehus, submitted that one of the defendants to the defamation action resided in South Australia. He also pointed out that some of the unit-holders, relevant to the Western Australian action, did not reside in Western Australia. However, he accepted, appropriately in my view, that there were going to be a number of witnesses to both actions who live in Western Australia. I do not need to make a finding as to the number of witnesses who may be called in the defamation claim but it is likely to be substantial and most reside in Western Australia.
Mr McCarthy further submitted that clearly there would be an increased cost to his clients if the matters were to proceed in Western Australia. He advised that an application had been made in Western Australia to transfer the Magistrates Court proceedings to South Australia. I do not see that as relevant to my consideration.
The fact that proceedings have been issued in Western Australia is not of itself a factor to take into account. In my view, it is simply part of the factual background.
Discussion
Apart from the fact that Mr and Mrs Niehus reside in South Australia and they have chosen to issue the defamation proceedings in South Australia there is a lack of connection with this State. The cause of action arose in Western Australia in the defamation action, the majority of witnesses reside in Western Australia and the increase in expense to Mr Niehus would not be great. The use of AVL facilities would overcome his difficulty in travelling.
In my view, taking into account all the submissions and the matters just mentioned, the interests of justice require the transfer of these proceedings under the Act to the Supreme Court of Western Australia.
Orders
I make the following orders:
1.that District Court of South Australia Action No 1501 of 2014 be transferred from the District Court of South Australia to the Supreme Court of South Australia;
2.that, upon this action being transferred to the Supreme Court of South Australia, it be transferred to the Supreme Court of Western Australia.
I will hear the parties as to whether any further orders are required and on the question of costs.