Small v Small
[2018] ACTSC 231
•24 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Small v Small |
Citation: | [2018] ACTSC 231 |
Hearing Date: | 14 August 2018 |
DecisionDate: | 24 August 2018 |
Before: | McWilliam AsJ |
Decision: | 1. The application dated 24 May 2018 is dismissed. 2. The defendant is to pay the plaintiffs’ costs of the application, such costs not to be recoverable until the conclusion of proceedings CS63 of 2018. |
Catchwords: | PRACTICE & PROCEDURE – application to transfer proceedings commenced in the Magistrates Court – whether proceedings complex – where legal principles established and facts straightforward – where procedure in the lower court not disadvantageous – application dismissed |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 115, 135, 139 |
Cases Cited: | Al Almoudi v Brisard (2006) 69 IPR 205; 3 All ER 294 |
Parties: | Joshua Small (First Plaintiff) Peta Mitchell-Smith (Second Plaintiff) Merryn Small (Defendant) |
Representation: | Counsel Mr Polden (First and Second Plaintiffs) Mr Goldsmith (Defendant) |
| Solicitors Aulich Civil Law (First and Second Plaintiffs) Goldsmiths Lawyers (Defendant) | |
File Number: | SC 238 of 2018 |
The parties in these proceedings are involved in defamation proceedings in the Magistrates Court of the Australian Capital Territory (Magistrates Court). The first plaintiff and the defendant were married and are now divorced. The first and second plaintiffs are now in a relationship. The plaintiffs are suing the defendant in relation to a post on the social media website Instagram, made earlier this year, which they allege was defamatory.
By application filed on 24 May 2018, the defendant seeks to transfer proceedings commenced by the plaintiffs in the Magistrates Court to this Court. The reasons for seeking the transfer of the proceedings are said to be as follows:
(a)The case involves questions of law of a complex or highly difficult nature.
(b)The case involves extensive questions of fact.
(c)The circumstances of the case are such that it is in the interest of the parties for the case to be heard in this Court.
(d)The circumstances of the case are as such that it is in the interest of public justice for the case to be heard in this Court.
Applicable principles
The statutory power to transfer proceedings is provided by s 270 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act), which provides:
On the application of a party to a proceeding in the Magistrates Court, the Supreme Court may order that the proceeding be removed into the Supreme Court on the conditions about costs, security for the amount claimed or costs, or otherwise, that the Supreme Court considers just.
Rule 1432 of the Court Procedures Rules 2006 (ACT) (Rules) is to similar effect.
The applicable principles on such an application were set out by Refshauge J in Yi Qi Jin v Yang Ai [2011] ACTSC 70 at [86]-[88]. His Honour relied upon Banks v Hollingsworth and Anor [1893] 1 QB 442 at 447-8 per Lord Esher MR. The question is whether, considering all the circumstances of the case, including the interests of the parties and of public justice, the case ought to be tried in the higher court, rather than the court in which the action was brought. Relevant circumstances may include the amount of the claim, the complexity of the case, whether the questions involved require the knowledge and experience of the judges in the superior court, and questions of efficiency in the resolution of the dispute. See also Ronald v Harper [1908] VLR 674 (at 676-7).
In Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924, Bryson J (as his Honour then was) said at [4]:
No limits or restrictions on the discretion [to transfer] are established by authority. When asked to exercise this power, the Court should … appraise the facts and circumstances of the case before it and consider whether the applicant has shown something which, within the framework of the purposes for which the power exists, is a sound ground or a good reason why an order ought now to be made. The subject does not admit of more particular exposition.
The defendant also relied upon the decision of Director of Public Prosecutions v Esso Australia Pty Limited [2000] VSC 572 at [7] per Cummins J, where his Honour referred to the matter under consideration being of substantial significance to the parties involved and to the persons affected by it. His Honour went on to say in the same paragraph:
It is a matter of legal significance, and the terms of the [Occupational Health and Safety Act 1985] are terms which may call for authoritative, that is to say, legally binding construction. It seems to me that it is appropriate that an authoritative court, that is to say, a legally binding court, should be seized of those matters. Further, the matter is of substantial public interest, and by that I do not mean the quantum of publicity but, rather, the inherent nature of the matters are matters of what the court and the law regards as of substantial public interest.
Nature of the claim in the Magistrates Court
The plaintiffs’ action in the Magistrates Court is brought at common law and under Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) (Act). The plaintiffs allege that the defendant published material on Instagram referring to a “Mr J” and “Harley”, among other things. The post commences “Let me clarify a few fun facts for your pea size brains here… Did you know that Bonnie and Clyde were shot and killed in the end?”
The internet post goes on to describe Mr J as a “chronic psychopathic abuser” and “Harley Quinn” as a “sick lost little girl that gave up her entire life including her child…to live with an abuser and become a cruel and vindictive woman”.
The internet post then states (punctuation as per the original):
Heres the thing about the truth setting you free it only does so if you actually tell your truth. You did not Mr J you merely sat behind your expensively cloaked lawyers like the true coward you are. Lets be very clear on this not proven doesnt equal not guilty. They are two entirely different things. Instead of setting you free you are now tied for an entire lifetime to the web of lies you have so delicately woven you will eventually be stuck so horribly that it will choke you…you are familiar with this right?? …And funnily enough these two sets of people you so wonderfully aspire to be end up with no one but each other – what a life!!!..So I say this in the nicest possible way politely fuck right off will you and leave both myself and my sons alone…And thats all I have to say on the matter peace out champs! I am off to live a brilliant life!...Yours sincerely.. The Former MRS Harley Quinn who is FINALLY and TRULY set free!!!
The post then concludes with a number of hashtags, one of which is “#youcantgrowabrain”.
On the evidence before this Court, the reference in the post to lawyers and a finding of ‘not proven’ may be taken as a reference to previous Magistrates Court proceedings involving the first plaintiff and the defendant, where the Magistrates Court determined that allegations made by the defendant were not proven.
The plaintiffs complain that various aspects of the post are defamatory. They say the post conveys that the first plaintiff is unintelligent, psychopathic, and physically abused the defendant during their marriage. They further allege the post conveys that the first plaintiff is of such character that he will cause the second plaintiff to become a cruel and vindictive woman, that although acquitted of criminal charges, the first plaintiff had been untruthful and was in fact guilty of those charges, and that he has told a great number of lies which will eventually have catastrophic consequences for him. Finally it is alleged that the post conveys that the first plaintiff has so misconducted himself towards the defendant’s sons as to warrant the defendant’s foul-mouthed abuse.
Similar allegations are made in relation to the post being defamatory of the second plaintiff.
The plaintiffs allege they can be identified by how they customarily referred to each other on social media and they seek (yet to be quantified) damages, including aggravated damages.
The defendant admits to uploading the material but does not admit this constituted ‘publication’ of the content, and also puts in issue that the plaintiffs could be identified from the references to Mr J and Harley Quinn.
The defendant then raises defences pursuant to ss 135 and 139D of the Act, respectively of justification (partially through previous posts either made by the plaintiffs or with their consent), and of triviality.
Relevant to justification and mitigation of damages, the defendant separately pleads that the first plaintiff was not of good reputation at the time the post was uploaded.
Submissions of the parties
Defendant’s submissions
The defendant submitted there were a number of significant questions of law to be determined in the substantive proceedings. I have grouped them for ease of reference. The first group may be classed as involving legal elements to a claim in defamation, namely identification, whether the meanings pleaded by the plaintiffs were capable of being defamatory, and if so, whether such meanings were in fact conveyed.
The second group of issues submitted by the defendant to be complex includes what I would describe as mixed questions of fact and law, being the ‘significance at law’ of the plaintiffs referring to themselves as ‘the Joker’ and ‘Bonnie and Clyde’, and what ‘significance at law’ may arise from posts previously made by the plaintiffs. I take these issues as directed to the defence of justification.
The third group of issues submitted by the defendant to raise significant questions of law are whether the defence of triviality arises and whether or not the plaintiffs were of good reputation.
The fourth group of issues submitted by the defendant to be complex relates to the factual findings required to resolve the dispute. They are evidentiary issues of proof, an example of which was the potential requirement for evidence to be called from overseas.
The defendant emphasised, through her legal representative, that she was not submitting the Magistrates Court did not have the relevant expertise to deal with the matter. Rather, it was the cumulative impact of the number of facts in issue and the number of legal questions for resolution that gave this case the degree of complexity that warranted the matter being transferred.
The defendant also submitted that the subject matter of publication, being a post on Instagram, required an authoritative judgment from the ACT Supreme Court. The defendant believes that there is a degree of public interest in such a judgment providing guidance for at least the ACT community, given the increased use of communication via social media. The defendant could find no published judgment in the Magistrates Court dealing with this type of complaint.
The defendant also raised procedural concerns, albeit as secondary or supplementary submissions to the main arguments about complexity of the proceedings. These included the personally acrimonious nature of the dispute between the parties, and the fact that every issue was currently in contest. It appears that there is a history of litigation between the parties, including family law proceedings in the Federal Circuit Court of Australia and in the Magistrates Court. This appears to have led to the defendant becoming somewhat jaded, or perhaps disillusioned, with the legal system as a whole.
The defendant is thus concerned about these proceedings becoming protracted, and she has no degree of confidence in the proper conduct of the matter if it remains in the Magistrates Court. She is also concerned about findings made in the previous proceedings in the Magistrates Court concerning her own evidence.
Plaintiffs’ submissions
The plaintiffs submitted that none of the questions of law were complex. Rather, they proceeded on established principles and the findings of fact did not require any particular expertise beyond that held in the Magistrates Court.
The plaintiffs have limited their claim to the jurisdictional limit of the Magistrates Court, being $250,000, with a view to similarly limiting their exposure on costs (as to which see r 1725 of the Rules and s 139K of the Act, which requires the court to have regard to the way in which the parties to proceedings have conducted their cases in awarding costs in defamation proceedings).
The plaintiffs contend that in commencing proceedings in the Magistrates Court, they were attempting to achieve a degree of proportionality having regard to the matters in issue, the costs and the overall objectives prescribed by s 115(c) of the Act of providing effective and fair remedies for persons whose reputations are harmed.
As to procedural matters, the plaintiffs submit that there is no procedural advantage to be gained by transferring the proceedings to this Court. The ACT does not provide for jury trials in civil matters in either court, there is no evidence that one particular court was able to provide a significantly more timely remedy and there was no broader public interest arising in the context of the factual dispute between the parties.
The exercise of the discretion in this case
Section 257 of the Magistrates Court Act permits the bringing of proceedings in that jurisdiction for any personal action at law where the amount claimed is not more than $250,000. Section 139F of the Act also caps the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings (excluding aggravated damages) at $250,000.
I accept, as was stated by the Victorian Court of Appeal in Google Inc v Trkulja [2016] VSCA 333 at [13], that defamation is a difficult area of law, even for experienced practitioners, and for judges having familiarity with the law of defamation. I also accept that the difficulty is magnified in the context of the interrelationship between defamation law and the internet.
However, that does not mean every case where publication on an internet website is alleged should be heard in superior courts of record, particularly where the legislature has seen fit to provide for a lower court to have concurrent jurisdiction and where parties are routinely encouraged to seek to limit the costs of litigation, which they may attempt to do by commencing proceedings in a lower court.
The reasons that follow appraise the facts and circumstances of this case as presently pleaded, with an eye to complexity, or otherwise discerning a sound ground for transfer to this Court. The consideration is detailed and is a product of the application proceeding by way of a number of affidavits and full written submissions, followed by lengthy oral argument. The defendant devoted considerable time on the application to attempting to persuade the Court that it was not any one legal or factual issue, but rather the combination of the issues that resulted in a level of complexity and a degree of public interest that meant the matter was more appropriately to be heard in this Court.
The point being made by the defendant, as I understood it, was that merely stating the elements of the cause of action, and then considering whether the legal principle that applied to the facts on each element was established, would lead to an oversimplification of the true complex nature of the dispute. What follows below is thus an attempt to consider the issues presented on the pleadings both individually and cumulatively, in order to do justice to that submission.
Significantly for this application, the plaintiffs are not suing Instagram or the corporate entity responsible for such website. They are only suing an individual, who admits to uploading the post on that internet platform. On the present pleadings, the issues will be proof of publication, identification, whether the imputations were defamatory, justification, triviality and damages.
Without seeking to trespass on the merits of the claim, as will become apparent, I do not share the defendant’s concerns about the complexity of the proceedings being a sound reason for transfer. However, nothing in these reasons as to what issues currently appear to arise on the pleadings ought to be taken as in any way dictating the course of the substantive dispute, and in the event that the pleadings change, the issue of appropriate jurisdiction may, of course, be revisited.
Publication
In relation to publication, it is uncontroversial that publication occurs when defamatory matter of and concerning the plaintiff is communicated to some person other than the plaintiff, as was stated in this jurisdiction in relation to Chapter 9 of the Act in Piscioneri v Brisciani [2015] ACTSC 106 (Piscioneri) at [47] per Burns J.
There is no presumption that material appearing on the internet has in fact been published: Al Almoudi v Brisard (2006) 69 IPR 205; 3 All ER 294; which has been applied in Australia: see Sims v Jooste [No 2] [2016] WASCA 83 (Sims) at [18]-[19] and the cases there-cited. The plaintiff must plead and prove that the material of which complaint is made has been accessed and downloaded, although this may be done via pleading and proving a platform of facts from which an inference of download can properly be drawn: Sims at [18].
The pleading here is that the material complained of was published to at least five named individuals, two of whom reside in the ACT. The place of publication is the place where the material is downloaded: Piscioneri at [48] citing Dow Jones & Co v Gutnick (2002) 210 CLR 575.
The defendant was unable to identify any matter of legal complexity and I have not found any particular complex issue in the plaintiffs attempting to prove those material facts, although the position may have been different if the internet service provider or corporation responsible for the Instagram website had been sued.
Identification
Identification is an essential element of the cause of action: Steel v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371, cited in Piscioneri at [71]. Whether or not a plaintiff has been identified is a matter of fact, and will depend upon the circumstances of each case: Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485 at [81].
Here, the plaintiffs have not been expressly identified in the material, and the pleading alleges the material was defamatory when read in conjunction with extrinsic facts (as to which see Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 642), which were known at the time to “the vast majority of the persons to whom the matter was published”, being the words pleaded in the statement of claim.
The principle is established, and was referred to in Piscioneri at [72]:
Where the publisher intended to refer to the plaintiff, the publisher cannot escape liability by simply omitting the plaintiff’s name. It is well accepted at common law that it is not essential for defamatory material to refer to the plaintiff by name where the plaintiff can prove that certain recipients of the publication had knowledge of extrinsic facts that would enable them to identify the plaintiff. The question then becomes whether an ordinary, reasonable person, with knowledge of those extrinsic facts, would have reasonably understood the publication to refer to the plaintiff: see David Syme & Co v Canavan (1918) 25 CLR 234 at 238. The plaintiff must prove:
(a) the existence of the extrinsic facts relied upon to identify her, unless they are of sufficient notoriety; and
(b) that the publicationwas made to at least one person who had knowledge of those extrinsic facts at the time of publication.
To my mind, the fact that a court will need to ascertain whether the plaintiffs were identified in the context of the publication as a whole, or by reference to extrinsic facts known to the recipients of the post at the time (as pleaded), does not bring with it any degree of complexity that would warrant transfer to this Court.
Whether the material or matter was defamatory
In relation to whether the matter complained of is reasonably capable of conveying the imputations pleaded, the principles are again well established, as seen in Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36; 269 FLR 182 at [61]-[62], cited in more recent times in McMillan v The Federal Capital Press of Australia Pty Ltd [2016] ACTSC 286 at [4] per Mossop AsJ (as his Honour then was).
As to whether the imputations alleged were in fact defamatory, the principles were referred to in Piscioneri at [53] and [55]. It is first necessary to identify what meaning is conveyed by the material read as a whole, which may be the natural and ordinary meaning of the words, or it may be derived from innuendo or inference: Jones v Skelton [1963] 1 WLR 1362 at 1370-1371; [1963] SR (NSW) 644 at 650.
The test is an objective one, from the position of the ordinary reasonable reader: Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6 at 10 per Fox CJ; Lewincamp v ACP Magazines Limited [2008] ACTSC 69 (Lewincamp) at [175]-[176] per Besanko J (and the authorities there-cited).
There is a distinction between the reader's understanding of what the material is saying and the judgments or conclusions which he or she might reach as a result of his or her own beliefs and prejudices. An imputation must reflect some meaning fairly attributable to the words in question, rather than merely a conclusion derived from some belief or prejudice excited by the material in question: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301.
It is then necessary to decide whether or not the meaning or meanings is/are defamatory. The Court looks to the substance of the imputations pleaded, and exercises a measure of discretion and flexibility in that task: see Lewincamp at [177] and Piscioneri at [56], each of which refer to the authorities establishing that principle.
It is also well established that mere abuse will not be defamatory where the recipients would have understood the material to be as such, in the sense that, in determining whether words used were defamatory, the context in which they were used may have been such that there was no likelihood of their affecting the reputation of the person spoken of; that no notice would be taken of them: see Mundey v Askin [1982] 2 NSWLR 369 at 372; Bennette v Cohen [2005] NSWCA 341; (2005) 64 NSWLR 81 at [48]-[51]; all of which were cited in Piscioneri at [66]. Further, the meaning conveyed by apublicationmay be altered by the context in which it is published: see Lang v Willis (1934) 52 CLR 637.
None of these principles were said to be under challenge in the present case.
As with the issue of identification, a court may need to make factual findings on whether the matter was defamatory by reference to extrinsic material, but this does not mean such factual findings, or the application of the legal principle to the facts as found, should not be carried out by the Magistrates Court.
This remains the position even if the Magistrates Court is called upon to make a number of factual findings, bearing in mind that what is under consideration is imputations deriving from one post on the internet.
Defences
As to defences, the defence of justification is available under s 135 of the Act. The defendant is required to prove that the defamatory imputations carried by the material of which the plaintiff complains are substantially true.
The defendant must establish that the ‘sting’ of a charge or imputation is true, rather than proving that every detail of the words established as defamatory is true: see Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4; Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; 9 VR 1 at [274] and the case there-cited; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [138]. However, every material part of the imputations upon the plaintiffs contained in the words complained of must be true; otherwise the justification fails as an answer to the action: Howden v Truth & Sportsman Ltd (1937) 58 CLR 416 at 419 per Starke J.
The defence filed by the defendant is particularly detailed as to the facts, matters and circumstances which support a finding that the defamatory imputations are true. I accept that this particular defence has complexity about it, partially because of the number of imputations raised in the pleading and the addressing of each in the defence.
However, I do not accept that the Magistrates Court is an inappropriate forum in which to grapple with those matters. To respectfully adopt the phraseology of Miles CJ in National Road and Motorists’ Association Ltd v Nine Network Australia Pty Ltd [2002] ACTSC 9 at [20], when faced with a submission that the defamation proceedings before his Honour in this Court ought be transferred to the NSW District Court because it had a specialist defamation list, presided over by a judge with skills and experience in the area, there is nothing that I can see that would cause any magistrate exercising the jurisdiction of the Magistrates Court to be embarrassed about discharging the judicial oath to do justice to the parties according to law.
The defence of triviality, a complete defence under s 139D of the Act, may loom large in this case. The defendant must prove that the circumstances of the publication were such that the plaintiffs were unlikely to sustain harm. In Brisciani v Piscioneri (No 4) [2016] ACTCA 32, the Court of Appeal referred at [91] (approving the reasoning of Burns J at first instance) to Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, where Moffitt P, Hope and Reynolds JJA observed at 800 that:
The expression “circumstances of the publication” seems more apt to describe matters such as the nature of the defamatory matter, the manner in which it is published, the persons to whom it is published and the place where it is published.
This is a question of fact and degree having regard to matters such as those just described. The defendant pleads, in essence, that the comments made in the post the subject of complaint were in response to previous posts made by the plaintiffs, which were themselves made to denigrate her; that the manner in which the material was posted – through Instagram, the language used, and with an accompanying silly photo of herself – was jocular in nature; and that the persons to whom the material was published were either people who knew the parties and already had fixed views about the plaintiffs, or people who did not know any of the parties. On the present pleadings, this does not appear to raise any complex questions of law or fact.
Damages
The defence pleads the first plaintiff was not, at the time of uploading of the post of good reputation in that he was a ‘practiced liar’ and had actively deceived the defendant on multiple occasions, relying on previous findings made in different proceedings in the Magistrates Court. While the pleaded lack of good reputation is relevant to justification and mitigation of any damages, proof of those matters does not give rise to any complexity in the evidence or the broader case.
Weighing the considerations
Taking into account all of the elements of the pleadings considered above, there is no doubt that there are numerous issues, each of which will require the consideration of different legal principles and how they apply to the facts of this case.
I accept that some aspects of the claim will be more complex than others in the application of legal principle. Similarly, the evidence relating to proof of publication, identification and in particular the defence of justification may be detailed. It may even be somewhat voluminous.
However, in light of the existing authorities which have been detailed above, I do not accept the defendant’s submission that there is any need for an authoritative statement by this Court specifically dealing with a case where a post on Instagram is the subject matter of the complaint. It has not been demonstrated that the present state of the jurisprudence is inadequate to deal with the facts of this case, such that it would be in the public interest for a judgment of this Court to provide guidance or clarification.
To the extent the defendant raised a concern about an inability to find any published decisions of the Magistrates Court specifically addressing defamation issues, this may simply be a product of the fact that due to the volume of matters passing through that court, many of the reasons for decision are delivered orally.
These matters must also be weighed against the underlying nature of the dispute, which, at its heart, is a relatively straightforward factual scenario of an ex-wife posting comments about her ex-husband and his new partner to those who ‘follow’ her Instagram profile, allegedly in response to previous nasty comments made by the ex-husband. If proven, the ambit of publication is within a relatively narrow compass.
If the claim succeeds, the monetary amount claimed must be well within the threshold of the Magistrates Court and in any event, the plaintiffs abandon any claim above that threshold.
Procedurally, the Rules applying to this Court are the same as those applying in the Magistrates Court. It cannot be said of this case that either jurisdiction offers a distinct procedural advantage, such as the ability to empanel a jury to determine the facts. Any concerns about the conduct of the plaintiffs being better or worse in a different court are therefore misplaced.
This is not to discount the possibility that one or more of the parties might perceive a higher court as having a greater degree of gravitas and alter their behaviour accordingly. However, it is not a matter that carries weight in deciding whether to transfer the proceedings, because the parties are under the same obligations to conduct the case efficiently, and with a view to resolving the genuine issues in dispute, regardless of the jurisdiction in which the claim is pursued. The same procedural tools are available to the defendant to ensure the timely and efficient progress of the proceedings. For example, s 139K of the Act, to which I have earlier referred, may focus the minds of all parties to this dispute as to their future conduct of the matter. Similarly, offers of compromise made either under the Rules or informally, with a view to protecting a party from the unreasonable pursuit of litigation resulting in disproportionate legal costs, have equal application in the Magistrates Court.
I am mindful of the concern the defendant has about the matter remaining in the Magistrates Court in light of the factual findings of the magistrate who heard the previous proceedings between the parties. In the event that it appears the same magistrate is listed to hear the defamation proceedings, that issue can be addressed by the legal representatives for either party making an application at the appropriate time for the matter to be heard by a different judicial officer. Given the unfavourable findings made in relation to the first plaintiff’s credit in the previous proceedings involving the parties in the Magistrates Court, that may be one matter upon which the parties both agree.
In all of these circumstances, I do not consider that any complexity in law or fact established by the defendant is sufficient to provide a sound reason for the transfer of the proceedings.
Conclusion and orders
For these reasons, I accept the submissions of the plaintiffs that in all the circumstances, it is not in the interests of the parties or of public justice for the matter to be transferred. The matter will remain in the Magistrates Court.
Costs should follow the event, in that as the defendant has been unsuccessful in her application, she should be required to pay the plaintiffs’ costs of the application.
It is appropriate, however, to delay the recovery of any such costs until the conclusion of the substantive proceedings in the Magistrates Court. Given the procedural nature of the dispute, the limited compass of the issues before the Court and the possibility that the defendant may ultimately be successful in defending the proceedings, such that more substantial costs orders may be made in her favour, it would not be just to permit the costs of this application to be separately assessed and paid before the conclusion of the substantive proceedings.
The orders of the Court will be:
(1) The application dated 24 May 2018 is dismissed.
(2) The defendant is to pay the plaintiffs’ costs of the application, such costs not to be recoverable until the conclusion of proceedings CS63 of 2018.
| I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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