Roberts, M.G. v Media Press Pty Ltd

[1989] FCA 535

JUDGMENT No. .5.3.5:/,.811_

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY 1 Nos NG 317/89

) NG 318/89

GENERAL DIVISION )

BETWEEN: MICHAEL GORDON ROBERTS

and ANOTHER

Applicants

AND :	MEDIA PRESS PTY LTD and
ORS.

Respondents

REASONS FOR JUDGMENT

LOCKHART J.:

Before the Court this morning are two motions brought by the first respondent seeking the transfer of both proceedings to the Supreme Court of New South Wales pursuant to the provisions of the Jurisdiction of Courts (Cross-vestinaI Act 1987 (Cth). There is a motion in each of the matters before the Court, and the two motions are being heard together by consent.

The proceedings in this Court were commenced by the filing of applications on 20 June this year and statements of claim have been filed, as have notices of appearance. Save for those steps, the only other step that has been taken is	The two sets of proceedings have much in common. In	the filing, serving and arguing of the motion for transfer.
proceeding G317 of 1989, there are two applicants and two respondents. In the proceeding G318 of 1989, there are the same two applicants, the first respondent is the same however the second and third respondents are different from the second respondent in the proceeding G317 of 1989.
There are two causes of action alleged in both proceedings. A cause of action based on s. 52 of the Trade Practices Act 1974 is asserted by the applicants against the first respondent in each proceeding. There is a second cause of action pleaded in proceeding G317 of 1989 against both respondents, being a claim for damages for defamation. In proceeding G318 of 1989, there are six causes of action, all based on alleged defamation of the applicants and six corresponding counts based on S. 52 of the Trade Practices && 1974. Again, the latter is alleged against the first respondent only, and the defamation counts against all respondents.
It is plain from what has been said that the same facts are, broadly speaking, involved in all causes of action in each set of proceedings. This Court has jurisdiction to hear the S. 52 counts and the counts based upon the law of defamation, subject, perhaps, to a question whether, so far as S. 52 is concerned, the relevant respondents who are the printers and the publishers of the publication may be information-providers within the meaning of the S. 65A of the Trade Practices Act.
The alleged defamatory conduct arises out of printing and publication in newspapers in the Vietnamese language circulating in various parts of Australia. So far as one can tell at this stage the alleged defamations, if they sound in damages in favour of the applicants, are defamations of a kind which would be likely to sound in substantial damages. Therefore, if there is to be a transfer of the matter from this Court, it is common ground that it should be transferred to the Supreme Court of New South Wales, not the District Court of New South Wales.
In my view, both matters should be transferred to the Supreme Court of New South Wales. The question to be determined under the cross-vesting legislation is, of course,
whether it is in the interests of justice that the transfer be made. Defamation cases have traditionally been heard by
the State Supreme and District Courts. The Supreme Court has long-established expertise in this area of law, and there is no doubt in my mind that this is, in substance, a defamation case.
The Supreme Court has rules, structures and procedures which are designed to deal specifically with defamation cases, one such example being Part 67 of the Supreme Court Rules. Also, the S. 52 counts are pleaded against the first respondent in each matter only, whereas, as I have said, the defamation counts are pleaded against all respondents. I am not satisfied that there is any benefit of which the applicants would be deprived if there is a transfer to the Supreme Court, or that any particular detriment will be suffered by them or on their account if the transfer is made.
It is true that the cases in the Supreme Court may be heard by a jury rather than a judge sitting alone. It is also, no doubt, true that jury cases tend to take, if not invariably, certainly generally, a longer time to try than cases heard by judges sitting alone, and I have taken all those matters into consideration. It may also be true to say that the costs of proceedings of a trial before a jury are more substantial than those before a judge sitting alone. I am not satisfied that is necessarily correct, but I think for
present purposes, I shall assume that, in the cases of this
nature, that that is correct.
There is evidence that the proceedings, if heard by the Supreme Court, will not be unduly delayed. Indeed, they may well be heard with some degree of expedition because, as I say, the procedures and practices of that Court have been specially tuned to deal efficiently with defamation cases.
Accordingly, in my opinion, the matters should be transferred to the Supreme Court, and the Court makes the following
orders :
1. That proceedings G317 and G318 of 1989 be transferred to the Supreme Court of New South Wales, pursuant to the provisions of the Jurisdiction of Courts ICross-vestina) Act 1987 (Cth);
2. The costs of the proceeding in this Court, including the cost of the first respondent's notice of motion for transfer, shall be costs in the proceeding in the Supreme Court of New South Wales. I note that the respondents other than the first respondent are separately represented in the proceedings before me this morning, and they support the transfer of the matters to the Supreme Court.

I certify that this and the preceding

four (4) pages are a true copy of the reasons for judgment herein of the

Honourable Mr. Justice Lockhart.

Associate

Dated: 27 July 1989

Counsel for the Applicants:	Mr. A.S. Martin
Solicitors for the Applicants:	Carneys
Counsel for the First Respondent:	Mr. B.R. McClintok
Solicitors for the First Respondent:	Cropper and Parkhill
Counsel for the Second and
Third Respondent:	Ms. Stevenson
Date of Hearing:	27 July 1989
Date of Judgment:	27 July 1989