Simeone v Walker

[2006] SASC 387

Supreme Court of South Australia

(Civil: Application)

SIMEONE & ANOR v WALKER & ORS

[2006] SASC 387

Judgment of The Honourable Justice Debelle (ex tempore)

18 December 2006

PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION

Action for defamation - application to transfer proceedings to Supreme Court of Queensland - plaintiff in Queensland - two defendants in Queensland - one defendant in USA - relevant principles - application allowed.

Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5(2)(iii), referred to.
Acton Engineering Pty Ltd v Campbell (1991) 31 FCR 1; Bankinvest AG v Seabrook (1988) 14 NSWLR 711; Bourke v State Bank of New South Wales (1988) 22 FCR 378; James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357; Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, applied.

SIMEONE & ANOR v WALKER & ORS
[2006] SASC 387

Civil

1. DEBELLE J.        This is an application to transfer an action from this Court to the Supreme Court of Queensland.

2. On 29 June 2006 the plaintiffs had commenced an action in this Court claiming damages for defamation. There are three defendants.

3. The first plaintiff is an orthodontist practising in Maroochydore in Queensland. The second plaintiff operates a business which distributes, among other things, diagnostic chiropractic and dental equipment and conducts seminars in most of Australia in relation to the use of that equipment. The business is located in Robina in Queensland.

4. The first defendant is a person who teaches a dental and chiropractic health system known as ‘chirodontics’. The second defendant is a dentist who resides in Brisbane but who practises at Surfers Paradise. Among other things, she organises and holds training seminars for chiropractors and dentists in competition with the business of the second plaintiff.

5. The third defendant is a chiropractor who practices at Jindalee, a suburb of Brisbane. He is an undischarged bankrupt. His trustee and bankruptcy carries on business in Brisbane. It appears that the plaintiffs have not obtained leave to proceed against the third defendant.

6. The plaintiffs allege that they were defamed in two emails distributed by the first defendant. The email was distributed in South Australia, Queensland, New South Wales, Victoria, the Australian Capital Territory, Tasmania and in New Zealand. The second defendant republished an email and that was republished in several States of Australia. The second and third defendants are alleged to have been involved in the republication of the email.

7. On 17 November 2006 the second defendant applied to transfer the action to the Supreme Court of Queensland. The application is grounded on the fact that she resides and works in Queensland and on the cost and inconvenience of coming to Adelaide to give instructions or for the trial of the action. In addition to the cost of travelling to Adelaide, she is concerned with losing income from her practice.

8. The first defendant resides in the United States. He consents to the transfer of the proceedings to the Supreme Court of Queensland.

9. A number of the witnesses reside in Queensland. They include a Dr Gerber, who is alleged to be extensively involved in the alleged defamation.

10. Section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 requires the court to determine whether it is more appropriate for the relevant proceedings to be determined by another court: Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730, that is to say, the court must determine with which court the action has the most real and substantial connection. When determining the court with which the action has the most real and substantial connection, the court will consider the connecting factors referred to by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 478. Expressed another way, regard should be had to what has been called the “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute: Bankinvest per Street CJ at 713-714. These principles have been consistently applied in all jurisdictions: see, for example, James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357. When determining the more appropriate forum the court must also have regard to the interests of justice. That expression is to be interpreted broadly: see Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394 and Acton Engineering Pty Ltd v Campbell (1991) 31 FCR 1 at 3.

11. When regard is had to the connecting factors, that is to say, to the nuts and bolts management decision, it is plain that this action should be transferred to the Supreme Court of Queensland. The plaintiffs reside and work in Queensland. The second defendant resides and works in Queensland. The first defendant is in the United States and it is as convenient for him for the action to be heard in Queensland as it is in Adelaide. In any event, he consents to the application. So far as the interests of the third defendant are material, he too resides and works in Queensland and his trustee and bankruptcy resides and works in Queensland. In addition, a greater number of the witnesses reside and work in Brisbane. It is to be noticed that the alleged publications were made to a limited number of people and most of those publications occurred in Queensland and New South Wales. There are a lesser number of publications in other States and it was published to only three persons in this State. The connection with the State of South Australia is therefore quite slender. The overwhelming factor is that all of the parties reside in Queensland, save and except the first defendant who consents to the application, and in addition a large number of the witnesses also reside in Queensland. There are, therefore, compelling reasons why, in the interests of justice, these proceedings should be transferred to the Supreme Court of Queensland.

12. However, the parties are in the process of seeking to compromise their differences. If the parties are able to reach a negotiated settlement of their differences, it would be pointless to transfer the proceedings to the Supreme Court of Queensland. I will, therefore, stay the operation of any order transferring the proceedings to the Supreme Court of Queensland for a period of time sufficient to allow the parties to ascertain whether they can compromise the proceedings.

13. For these reasons there will be orders:

    1.      Transfer this action to the Supreme Court of Queensland.

    2.      Stay the operation of this order until 5 pm on 30 January 2007.

    3.      Question of costs reserved.

    4.      Adjourn to 9 am on 30 January 2007.