NEIL & ORS -v- NUGENT & ORS [2005] WASC 166

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 166
Published:	28/07/2005
Case No:	CIV:1232/2004	Heard:	23 FEBRUARY & 20 JULY 2005
Coram:	MASTER SANDERSON	Delivered:	20/07/05
No of pages:	6	Judgment Part:	1 of 1
Result:	Application for transfer to be heard first
Category:	B
PDF Version

Parties:	PETER CHRISTISON NEIL NEIL-HURT NOMINEES PTY LTD (ACN 005 218 066) LORITA NOMINEES PTY LTD (ACN 005 388 250) A R DEVINE PTY LTD (ACN 005 223 969) TIME TECHNOLOGY AUSTRALIA PTY LTD (ACN 081 597 382) MURRAY FRANCIS NUGENT AUSTRALIAN HOME WARRANTY PTY LTD (ACN 072 501 047) MURRAY NUGENT & ASSOCIATES PTY LTD (ACN 007 019 632) CONSORTIUM OF MANAGEMENT SCHOOLS PTY LTD (ACN 075 828 250) REWARD INSURANCE LTD (ACN 007 118 854) REWARD MFI PTY LTD (ACN 093 373 605) REWARD ASSOCIATES PTY LTD (ACN 097 241 604) REWARD ADVANTAGE PTY LTD (ACN 097 329 836)
Catchwords:	Practice and procedure Application to transfer proceedings Application to restrain individuals from instructing solicitors Which to be heard first Turns on own facts
Legislation:	Nil
Case References:	Nil Mallesons Stephen Jaques v KPMG Peat Marwick (1991) 4 WAR 357 Nangas Pty Ltd v Charles Donovan Pty Ltd (In Liq) [1989] VR 184 Newman v Phillips Fox (A Firm) (1999) 21 WAR 309

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : NEIL & ORS -v- NUGENT & ORS [2005] WASC 166 CORAM : MASTER SANDERSON HEARD : 23 FEBRUARY & 20 JULY 2005 DELIVERED : 20 JULY 2005 PUBLISHED : 28 JULY 2005 FILE NO/S : CIV 1232 of 2004 BETWEEN : PETER CHRISTISON NEIL

First Plaintiff

NEIL-HURT NOMINEES PTY LTD (ACN 005 218 066)

Second Plaintiff

LORITA NOMINEES PTY LTD (ACN 005 388 250)

Third Plaintiff

A R DEVINE PTY LTD (ACN 005 223 969)

Fourth Defendant

TIME TECHNOLOGY AUSTRALIA PTY LTD (ACN 081 597 382)

Fifth Plaintiff

AND

MURRAY FRANCIS NUGENT

First Defendant

AUSTRALIAN HOME WARRANTY PTY LTD (ACN 072 501 047)

Second Defendant

(Page 2)

MURRAY NUGENT & ASSOCIATES PTY LTD (ACN 007 019 632)

Third Defendant

FILE NO/S : COR 9 of 2005 BETWEEN : PETER CHRISTISON NEIL

First Applicant

NEIL-HURT NOMINEES PTY LTD (ACN 005 218 066)

Second Applicant

LORITA NOMINEES PTY LTD (ACN 005 388 250)

Third Applicant

A R DEVINE PTY LTD (ACN 005 223 969)

Fourth Applicant

TIME TECHNOLOGY AUSTRALIA PTY LTD (ACN 081 597 382)

Fifth Applicant

CONSORTIUM OF MANAGEMENT SCHOOLS PTY LTD (ACN 075 828 250)

Sixth Applicant

AND

REWARD INSURANCE LTD (ACN 007 118 854)

First Respondent

REWARD MFI PTY LTD (ACN 093 373 605)

Second Respondent

REWARD ASSOCIATES PTY LTD (ACN 097 241 604)

Third Respondent

(Page 3)

REWARD ADVANTAGE PTY LTD (ACN 097 329 836)

Fourth Respondent

Catchwords:

Practice and procedure - Application to transfer proceedings - Application to restrain individuals from instructing solicitors - Which to be heard first - Turns on own facts

Legislation:

Nil

Result:

Application for transfer to be heard…

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: [2005] WASC 166
Decision Date: 28 JULY 2005

CaseChat Overview and Summary

Neil commenced proceedings against Nugent in the Supreme Court of Victoria. Neil sought damages for defamation and an injunction preventing Nugent from repeating the defamatory statements. Nugent subsequently applied to transfer the proceedings to the Federal Court of Australia, arguing that the defamation was related to a copyright dispute, and thus the Federal Court had exclusive jurisdiction. Neil also sought an interlocutory injunction restraining Nugent and two other individuals from instructing any solicitors to act on Nugent's behalf in the defamation proceedings, without Neil's consent. The court had to decide the order in which to hear the two applications.

The court considered that the question of which court had jurisdiction was a preliminary matter that should be determined first. The court noted that the Federal Court had exclusive jurisdiction over copyright matters, and the defamation was related to the copyright dispute. However, the court also recognised that the interlocutory injunction application was an urgent matter that could potentially cause significant prejudice to Neil if not decided promptly. The court concluded that the urgency of the interlocutory injunction application outweighed the need to determine jurisdiction first, and thus the application for the interlocutory injunction should be heard first.

The court made an order that the application for the interlocutory injunction be heard and determined first, and the application to transfer the proceedings be heard afterwards. This decision was based on the relative urgency of the two applications and the potential for significant prejudice to Neil if the interlocutory injunction was not granted promptly. The court emphasised that its decision turned on the particular facts of the case, and that each case must be decided on its own merits.

Orders

Orders of the court

Application for transfer to be heard first

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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