Hoser v Hartcher [1999] NSWSC 1060

New South Wales Supreme Court CITATION : Hoser v Hartcher [1999] NSWSC 1060 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20601 of 1995 HEARING DATE(S) : 27 August 1999 JUDGMENT DATE : 27 October 1999

RAYMOND HOSER (Plaintiff)

PARTIES : v

CHRISTOPHER HARTCHER (Defendant) JUDGMENT OF : Levine J

M Rollinson (Plaintiff) COUNSEL : J Gibson (Defendant) Duker & Associates (Plaintiff) SOLICITORS : Lynn Boyd Solicitor (Defendant) CATCHWORDS : Transfer to District Court DECISION : See paragraph 18

DLJ: 1

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20601 of 1995

JUSTICE DAVID LEVINE

WEDNESDAY 27 OCTOBER 1999

RAYMOND HOSER (Plaintiff)

v

CHRISTOPHER HARTCHER (Defendant)

JUDGMENT (Transfer to District Court) 1 The defendant applies for an order pursuant to s 143 of the District Court Act 1973 that this defamation action be transferred to that Court in Sydney. The application is opposed. 2 The defendant moves by Notice of Motion filed in Court on 27 August and the affidavit in support sworn 27 July of Simon William Davis solicitor for Mr Hartcher. 3 The lamentable history of the conduct of this litigation and the extraordinary nature of it is eloquently set out in the judgment of Simpson J of 2 June 1999 (NSWSC 527) wherein she dismissed a Notice of Motion on the part of the defendant to have the action stayed or dismissed for want of prosecution. 4 Apparently there is now anxiety in the defendant to have this matter disposed of; hence the present application. 5 The conduct of both the plaintiff and the defendant received appropriate critical comment from her Honour. It appears from the affidavit of Mr Davis that the plaintiff has failed to comply with Orders and Directions of this Court particularly in relation to the filing of a Reply. It is to be noted that one in fact was filed on 30 July 1999. 6 As I understand it there has been an exchange of correspondence between the solicitors for the parties relating to the plaintiff's intention to amend the imputations, that is, the causes of action, upon which he will rely against the defendant. 7 In the event the present imputations are: "5(a) The plaintiff made allegations against the NSW National Parks and Wildlife Service which he knew to be false; (b) the plaintiff made allegations against the NSW National Parks and Wildlife Service of so ridiculous a nature that he ought to have known they were false; (c) The plaintiff irresponsibly made a series of allegations against the NSW National Parks and Wildlife Service for the purpose of gaining publicity for himself; (d) The plaintiff had caused the NSW National Parks and Wildlife Service to expend considerable time and money by making a series of allegations against it which he knew to be false; (e) The plaintiff had caused the NSW National Parks and Wildlife Service to expend considerable time and money be making a series of allegations against it which were so ridiculous that he ought to have known that they were false". 8 The defendant proposes amongst other defences to justify and one can gather from the present application, he is anxious to do so. The imputations while serious are not of the upmost gravity. The quantum of damages the plaintiff is likely to obtain, on any view of the matter, will be severely affected by the admission into evidence of certificates of his conviction for perjury. Even leaving that to one side the plaintiff's quantum of damages severely will be affected, absent any acceptable explanation on the issue, by the delay in the initiation of the proceedings and in their prosecution. I mention these matters by reason of certain submissions made in the course of argument as to the operation of s 44 of the District Court Act 1973 and in particular, s 44(1)(e). 9 Relevantly that section is now in the following terms: "44(1) Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions: