Slater v Smith (No 2) [2021] NSWSC 762

Supreme Court New South Wales

Medium Neutral Citation: Slater v Smith (No 2) [2021] NSWSC 762 Hearing dates: 16 – 17 June 2021 Date of orders: 16 June 2021 Decision date: 16 June 2021 Jurisdiction: Common Law Before: Hamill J Decision: (1)The notice of motion brought by David Bishop in his capacity as a director of Ecosol Pty Ltd dated 16 December 2020 is struck out, noting that: (a)Mr Bishop may be heard, if necessary, to represent the interests of Ecosol Pty Ltd; and (b) Jeffery Smith as chairman of Ecosol Pty Ltd undertakes to pay the travel costs incurred by David Bishop on this application. Catchwords: CIVIL LAW - application by third party to be joined as a party to application under cross-vesting legislation - ungratifying arguments - application becomes redundant in course of argument Legislation Cited: Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.27 Category: Procedural rulings Parties: Matthew Richard Slater (Plaintiff) Jeffery Malcolm Smith (Defendant) Representation: Nil File Number(s): 2020/00347082 Publication restriction: Nil

EX TEMPORE Judgment (rEVISED) 1. There is a notice of motion before the Court in proceedings between Matthew Richard Slater and Jeffrey Malcolm Smith filed by a Mr David Bishop on 16 December 2020. Mr Bishop seeks an order under either r 6.24 or r 6.27 of the Uniform Civil Procedure Rules 2005 (NSW) to be added as a party to the proceedings. The current proceedings are brought by summons filed by Mr Slater on 7 December 2020 seeking to have certain defamation proceedings, currently before the New South Wales District Court stayed and then subject to transfer to South Australia under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ("Cross-vesting application"). The purpose of the transfer is, in essence, to consolidate the proceedings with defamation proceedings which are currently listed in South Australia for hearing and which relate to the same parties. The interest Mr Bishop asserts to have is that he is a director of a company called Ecosol Pty Ltd ("Ecosol"). Ecosol is the second respondent in the South Australian defamation proceedings although it is not a party to the NSW defamation proceedings. 2. We have just spent the best part of an hour hearing what I would respectfully call most ungratifying arguments one way or another as to whether Ecosol should have a right to be heard. When we managed to get to the nub of the issue, there was a concern on the part of those, in what I'll call for the purposes of this judgment "Ecosol's camp", that Mr Slater may accuse Mr Smith of having a conflict of interest in terms of making submissions in relation to Ecosol's interest in the Cross-vesting Application. There was also a concern on the part of Mr Slater that Mr Bishop's application was ultimately one which was concerned with having his costs, disbursements and expenses from travelling from South Australia to this Court for this hearing paid by Mr Slater in the event that costs are ordered against him in relation to the Cross-vesting Application or any one of the other applications that are currently before the Court between the same parties. 3. By the time the arguments on this issue were complete, Mr Slater, in essence, conceded that I should at least hear arguments relevant to Ecosol's interest, if any, in the Cross-vesting Application. Mr Smith, as the chairman of the Ecosol board, made an undertaking that he would personally cover, or the company would cover, any expenses incurred by Mr Bishop in pursuing Ecosol's interest in the applications currently before the Court. 4. Accordingly, the notice of motion essentially became redundant. The parties agree that Ecosol can make submissions. I propose to allow Mr Bishop to make submissions on Ecosol's behalf if it is deemed appropriate and necessary by Mr Smith and the company. 5. In doing so, I note that there will be no costs ordered in favour of Mr Bishop, whatever happens, because of the undertaking made by Mr Smith on behalf of Ecosol to pay his airfare, which is the only cost that I understand may flow. 6. Accordingly, I make the following orders: 1. The notice of motion brought by David Bishop in his capacity as a director of Ecosol Pty Ltd dated 16 December 2020 is struck out, noting that: 1. Mr Bishop may be heard, if necessary, to represent the interests of Ecosol Pty Ltd; and 2. Jeffery Smith as chairman of Ecosol Pty Ltd undertakes to pay the travel costs incurred by David Bishop on this application.