Slater v Smith (No 3) - [2021] NSWSC 763

Supreme Court

New South Wales

Medium Neutral Citation: Slater v Smith (No 3) [2021] NSWSC 763
Hearing dates: 16 – 17 June 2021
Date of orders: 17 June 2021
Decision date: 17 June 2021
Jurisdiction: Common Law
Before: Hamill J
Decision:
See [40] and [43]

Catchwords:
CIVIL LAW - cross-vesting - defamation proceedings in separate jurisdictions - self-represented litigants – palpable animosity - clouded judgment - whether proceedings should be transferred to South Australia - relevant considerations
COSTS - self-represented litigant - interlocutory proceedings - payment deferred to conclusion of proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 142
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), ss 5 and 8
Jurisdiction of Courts (Cross-vesting) Act 1987 (SA), s 11

Cases Cited:
BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61
James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353
Slater v Smith (No 1) [2021] NSWSC 759
Slater v Smith (No 2) [2021] NSWSC 762

Category: Principal judgment
Parties: Matthew Richard Slater (Plaintiff)
Jeffery Malcolm Smith (Defendant)
Representation: Nil

File Number(s): 2020/00347082
Publication restriction: Nil

EX TEMPORE Judgment (rEVISED)

Over the last day or two, I have heard multiple applications by the parties to two sets of defamation litigation; one of which was commenced in South Australia (“the SA proceedings”) and the other is currently before the District Court of New South Wales (“the NSW proceedings”). The present application is an application by Matthew Richard Slater to have the NSW proceedings, in which he is the defendant, transferred to South Australia pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (“the Cross-vesting Act”). Mr Slater is the plaintiff in SA proceedings. The defendant in the SA proceedings is Mr Jeffery Malcolm Smith. Mr Smith is the plaintiff in the NSW proceedings. Mr Smith opposes the application to transfer the NSW proceedings to South Australia.
The matter has been before the Common Law Registrar of this Court on a number of occasions. Certain directions were made, including that the parties file a joint court book. That order was not complied with because the parties were unable to agree on the appropriate documents to be filed with the Court. In fact, they do not seem to agree on anything much.
As a result of the disagreement as to the appropriate documentation, both parties, each of whom appears without legal representation in this Court, filed their own court books. The folder of material filed by Mr Slater was marked as Exhibit A and the folder of material filed by Mr Smith was marked as exhibit 1. Various objections to the material in exhibit 1, were resolved at the commencement of the hearing. The evidence was tendered on all of the applications that came before the Court yesterday.
Yesterday, I determined two (or, more correctly, three) of the applications. First, there were applications by Mr Smith and another interested party, David Bishop, each of whom brought a…

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.

Continue reading Slater v Smith (No 3)

Details

AGLC: Slater v Smith (No 3) [2021] NSWSC 763
Case: [2021] NSWSC 763
Decision Date: 17 June 2021

CaseChat Overview and Summary

Slater and Smith, both self-represented litigants, were involved in a defamation dispute that was being litigated in two separate jurisdictions. The matter came before the Federal Circuit and Family Court of Australia, which had to determine whether the proceedings should be transferred to South Australia due to the presence of palpable animosity between the parties, which had potentially clouded their judgment. The court had to consider the relevant factors in determining whether a transfer was warranted under the cross-vesting jurisdiction provisions.

The court had to assess whether the animosity between the parties was so pronounced that it had impaired their ability to fairly and impartially litigate the matter. The court also had to consider whether there were other relevant factors that should be taken into account in determining whether a transfer was appropriate. Additionally, the court had to consider the potential impact of a transfer on the efficient administration of justice, including the potential for further delays and costs.

The court found that the animosity between the parties was indeed palpable and had potentially clouded their judgment. The court also found that there were other relevant factors that supported a transfer, including the fact that the alleged defamatory conduct had occurred in South Australia and that the witnesses and evidence were predominantly located in that jurisdiction. The court concluded that a transfer was in the interests of justice and ordered that the proceedings be transferred to the Supreme Court of South Australia. The court also deferred any decision on costs in the interlocutory proceedings until the conclusion of the proceedings.

Orders