Zaia v Eshow

[2016] NSWSC 1684

Supreme Court

New South Wales

Medium Neutral Citation:	Zaia v Eshow [2016] NSWSC 1684
Hearing dates:	29 November 2016
Date of orders:	29 November 2016
Decision date:	29 November 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. The defendant’s notice of motion is dismissed. 2. The defendant is to pay the plaintiff’s costs of the notice of motion as agreed or assessed. 3. The proceedings are adjourned for directions before McCallum J in the Defamation List on Friday 2 December at 2pm. 4. I note that the defendant will appear before McCallum J via audio link on that day.
Catchwords:	PRACTICE AND PROCEDURE – Application for transfer of proceedings to the Supreme Court of Victoria – Whether interests of justice warranted transfer – No point of principle
Legislation Cited:	Defamation Act 2005 (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Cases Cited:	BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 James Hardie Pty Limited v Barry (2000) 50 NSWLR 537; [2000] NSWCA 353
Category:	Procedural and other rulings
Parties:	Mar Meelis Zaia – Plaintiff Sargon Eshow – Defendant
Representation:	Counsel:    C Amato – Plaintiff Defendant in person   Solicitors: David Legal – Plaintiff
File Number(s):	2016/96912
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. The defendant seeks an order pursuant to s. 5(2) of the Jurisdiction of Courts (Cross-vesting) Act1987 (NSW) (“the Act”) that the proceedings brought against him by the plaintiff be transferred to the Supreme Court of Victoria. The notice of motion sets out the grounds upon which that application is brought. The application is opposed by the plaintiff. It should be noted that the defendant has represented himself on the hearing of this application and, in circumstances where he is a resident of Victoria, has appeared before the Court today by telephone.

2. The plaintiff is His Beatitude Mar Meelis Zaia, the Metropolitan of the Holy Apostolic Catholic Assyrian Church of the East in Australia, New Zealand and Lebanon. The plaintiff is known by the Honorific "His Beatitude". He is a resident of Sydney. The defendant was, for some time, a parishioner of the Assyrian Church of the East in a parish in Melbourne, where he continues to reside. In April of 2015 the defendant was apparently suspended from membership of the Church for a period of 2 years. On the plaintiff's case, following that suspension the defendant allegedly launched what might be described as a "campaign" against the plaintiff through the social media site “Facebook”. It is the plaintiff’s case that between 30 March 2015 and 10 December 2016, the defendant published a total of eight matters which the plaintiff asserts were defamatory of him.

3. The plaintiff commenced the current proceedings in March 2016. The present motion was filed on 19 August 2016. A defence has been filed in the proceedings which, amongst other things, pleads qualified privilege. The evidence pertaining to the present application has been conveniently assembled in a Court Book, the index to which records its contents, all of which I have read. Part of the evidence is contained in two excerpts of DVD footage which were played to the Court on the hearing of the present application. I will refer to that footage in due course. It should be noted that the defendant raised some objections to the affidavit evidence relied upon by the plaintiff. Having heard those objections, I determined that the affidavits were admissible and should be read. The nature of the objections raised by the defendant were directed towards cavilling with issues which may be relevant at a final hearing of the matter, but which were not relevant to the question of whether the affidavit evidence relied upon by the plaintiff was admissible.

4. The power to transfer proceedings which is conferred on the court under the Act is directed towards ensuring that cases are heard in the forum which is most appropriate in the interests of justice. An application for transfer under the Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the proceedings will be transferred. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of the justice to do so. It is not necessary that I should find that this Court is a clearly inappropriate forum before making an order transferring the proceedings. In order to exercise the power to transfer the proceedings, it is both necessary and sufficient that in the interests of justice, the Court to which the matter is proposed to be transferred is the more appropriate Court: BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [14].

5. Counsel for the plaintiff submitted that there were a series of circumstances which weighed against the transfer of the proceedings.

6. Firstly, counsel submitted that this court was the more appropriate court because the alleged publication of the defamatory material occurred predominantly in this State, such that the substantive law which would apply would be the law of New South Wales (having regard to the provisions of s. 11(2) of the Defamation Act 2005 (NSW)).

7. Secondly, counsel submitted that the balance of convenience favoured the proceedings remaining in this Court. She cited, in particular, the fact that the plaintiff ordinarily resides in New South Wales, and that the affidavit evidence filed on the plaintiff's behalf established that the vast majority, if not all, of the witnesses to be called in the plaintiff's case were also residents of New South Wales.

8. Thirdly, it was submitted that to the extent that the defendant had raised issues of his health which were said to favour the order sought, I should conclude that those assertions were at odds with other evidence and, in any event, had been appropriately addressed by the plaintiff’s offer to meet the entirety of the defendant's expenses associated with attending for a hearing of the proceedings in this court. Counsel further submitted that the last matter would also appropriately address the submission made by the defendant that he did not have the financial means to deal with the proceedings if they remained in this court.

9. Fourthly, counsel submitted that there would necessarily be (as set out in the affidavit of her instructing solicitor Mr David) considerable expense visited upon the plaintiff in the event that the proceedings were transferred. She also pointed out, in light of part of the affidavit material relied upon by the defendant, that if the plaintiff is successful in these proceedings it would be highly unlikely that he would be able to recover any costs which the defendant might be ordered to pay.

10. Finally, counsel submitted that there were particular procedures in place in this court governing case management of defamation litigation which ensured that if the proceedings remained here they would be conducted more efficiently and more expeditiously than would be the case if they were transferred. In this respect counsel pointed, in particular, to the contents of the relevant Practice Note which governs the conduct of defamation litigation in this court.

11. For all of these reasons, counsel for the plaintiff submitted that the present application should be dismissed.

12. The defendant, who as I have noted appeared unrepresented before me today, cited two particular matters which, he submitted, weighed in favour of the order sought. The first was that because of his ill health, it was difficult for him to travel and leave his family. In this regard, the defendant went so far as to assert that his wife was his full-time carer. The second matter relied upon by the defendant was that he proposed to call eight witnesses in his case in these proceedings, all of whom are resident in Victoria. When I asked him to identify the eight witnesses, he informed me that six of them were family members. I was informed by counsel for the plaintiff that one of the other persons named has in fact withdrawn the affidavit which was filed in support of the defendant. What is of even more significance is that when I asked the defendant why it was necessary for him to call six family members to give evidence, he responded by saying that their evidence would go to the issue of "why the plaintiff wants to keep me silent in this case". It is difficult to see, in those circumstances, what possible relevance that would have to any issue in the proceedings.

13. The defendant, as the party who seeks to have the proceedings transferred, bears a persuasive onus of satisfying me that a transfer is appropriate: see James Hardie Pty Limited v Barry (2000) 50 NSWLR 537; [2000] NSWCA 535. For a number of reasons, I am not satisfied that the interests of justice warrant such transfer.

14. Firstly, the affidavit of Mr David (the plaintiff's solicitor) establishes that those witnesses who the plaintiff proposes to call, both as to the fact of the publication of the alleged defamatory material and as to the plaintiff's general reputation, are all residents of New South Wales. That is to be contrasted with the defendant's position in relation to those witnesses whom he says he wants to call.

15. Secondly, I am satisfied that the proceedings would incur further substantial expense if they were transferred. What is of particular significance in this respect is that if the plaintiff is successful in the proceedings, and in circumstances where costs will increase if they are transferred, it seems he may well have some difficulty recovering any costs which might be awarded in his favour. I say that because in paragraph 21 of his affidavit of 3 November 2016, (that being one of the affidavits which the defendant relied upon in support of the present application) the defendant stated:

“Although the defendant, a disabled support pensioner supporting a young family, does own the property set out in paragraph 47, the said property barely has any equity. So even if the defendant were to lose the case, he would be secure in the knowledge that any money awarded against him almost likely never be collected by the plaintiff."

16. Thirdly, the procedures for the conduct of defamation litigation in this court and which are reflected in the Practice Note would, in my view, ensure a more efficient hearing. Proceedings of this nature are closely case managed by an experienced judge, whose task is obviously assisted by the provisions of the relevant Practice Note. I am told by counsel for the plaintiff, and I accept, that there is no corresponding Practice Note governing defamation litigation in the Supreme Court of Victoria.

17. Fourthly, and as I have already noted, one of the matters cited by the defendant as supporting the order for a transfer was his state of health. He asserted, it seems for the first time, that his wife is his full-time carer, and that he would be unable to leave his wife for any period of time so as to travel to this State for the purposes of attending the hearing of these proceedings. A number of observations need to be made about that assertion.

18. Part of the evidence relied upon by the defendant in opposing the present motion were two excerpts of DVD footage. The first depicted the defendant apparently attending a wedding in April of this year. I do not propose to go into detail about what is seen on that footage. It is sufficient for present purposes to note that the footage depicts the defendant as a guest at a wedding engaging in, amongst other things, dancing with other guests who were present. The defendant demonstrated a degree of agility in that footage which is fundamentally inconsistent with the proposition that his state of health is such as to require him to have a full-time carer.

19. The second excerpt of DVD footage which was shown to the court was taken on 16 August this year. It depicted the plaintiff in the company of two other persons in the immediate vicinity of a branch of the Roads and Maritime Services Department in Victoria. One of the affidavits relied upon by the plaintiff for the purposes of these proceedings is that of Stavros Pantelis of 23 September 2016. Mr Pantelis deposed in that affidavit to the fact that on 2 September 2016 he rang a number and the voice on the other end identified himself as being named "Sargon". That is the Christian name of the defendant. Although the conversation which ensued was short, an available inference is that statements made by the defendant at that time were consistent with him conducting a business of a driving instructor. Documents annexed to that same affidavit include what appears to be an advertisement for a driving school, the defendant being named as a driving instructor. The second excerpt of footage depicted the defendant in a location where one might expect driving instructors to be. Although it did not show him engaging in any form of strenuous physical activity, there is an obvious inference available on the evidence that he is in fact conducting a business as a driving instructor. That does not sit comfortably with his claims of ill health.

20. What is also of significance is that in the first of his affidavits upon which he relied (that of 15 August 2016), the defendant asserted (at paragraph 3) that his back pain became too great for him to continue as a driver educator. The footage to which I was taken in the course of this hearing depicted the defendant, 24 hours later, in the vicinity of a Government office that a driving instructor might well attend. I am left with grave misgivings as to the veracity of the defendant's claim that his state of health is a matter which would prevent him from travelling to Sydney for the purposes of this hearing.

21. Finally, I am prepared to accept on the evidence that the defendant is in receipt of some form of pension or similar benefit. To the extent that this might otherwise cause a difficulty in his being able to afford to travel to Sydney for the purposes of the hearing of these proceedings, that difficulty is overcome by the fact that I was informed by counsel for the plaintiff, and I accept, that the plaintiff has offered to fund the defendant's airfare and associated travel expenses as to allow him to travel to Sydney for the purposes of this hearing.

22. In all of those circumstances, I have come to the view that the matters to which I was taken in the course of submissions overwhelmingly favour the proceedings remaining in this Court. I am satisfied that the interests of justice are best served by that course.

23. I have been asked to make an order for costs in favour of the plaintiff. When I gave an opportunity to the defendant to address me in relation to that issue he indicated that he was not (or may not be) in a position to pay any costs awarded. He also indicated that he was unhappy with the decision that I had reached on the notice of motion.

24. There is no reason why costs should not follow the event. Quite apart from any other consideration, it will be evident from the reasons that I have given that the defendant's application to transfer the proceedings had little merit.

25. I therefore make the following orders:

1. The defendant’s notice of motion is dismissed.

2. The defendant is to pay the plaintiff’s costs of the notice of motion as agreed or assessed.

3. The proceedings are adjourned for directions before McCallum J in the Defamation List on Friday 2 December at 2pm.

4. I note that the defendant will appear before McCallum J via audio link on that day.

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Decision last updated: 05 December 2016