Nationwide News Pty Ltd v Vasiljkovic [2009] NSWSC 1227

New South Wales Supreme Court

CITATION : Nationwide News Pty Ltd v Vasiljkovic [2009] NSWSC 1227

HEARING DATE(S) : 6 November 2009

JUDGMENT DATE : 13 November 2009

JUDGMENT OF : Harrison J

DECISION : Application dismissed with costs.

CATCHWORDS : PRACTICE & PROCEDURE – s 140 Civil Procedure Act 2005 - application to transfer defamation proceedings from District Court to Supreme Court –– defence of truth – where overseas witnesses may be called to establish defence - whether video link arrangements for evidence from witnesses in Croatia would cause procedural disadvantage – whether disadvantage would be reduced or eliminated if transfer occurred – Foreign Evidence Act 1994 – no evidence of procedural disadvantage -application refused

LEGISLATION CITED : Civil Procedure Act 2005 Foreign Evidence Act 1994 (Cth)

CATEGORY : Procedural and other rulings

Banks v Hollingsworth [1893] 1 QB 442 CASES CITED : Ex parte Heiliger (1897) 13 WN (NSW) 170 Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924

PARTIES : Nationwide News Pty Ltd (Plaintiff) Dragan Vasiljkovic (Defendant)

FILE NUMBER(S) : SC 14994/2009

COUNSEL : J Hmelnitsky (Plaintiff) R Rasmussen (Defendant)

SOLICITORS : Blake Dawson (Plaintiff) DC Legal Pty Ltd (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HARRISON J

13 November 2009

14994/2009 Nationwide News Pty Ltd v Dragan Vasiljkovic

JUDGMENT 1 HIS HONOUR: Nationwide News seeks an order that proceedings in the District Court be transferred to this Court pursuant to s 140 of the Civil Procedure Act 2005. It relies upon the single ground of procedural disadvantage. This is explained below. Background 2 The District Court proceedings are defamation proceedings in which Mr Vasiljkovic alleges that he was defamed by Nationwide News in an article published by it in The Australian newspaper on 27 May 2009. The parties are currently involved in other defamation proceedings in this Court concerning a publication in the same paper on 8 September 2005. Mr Vasiljkovic alleges in those proceedings that the publication conveys imputations defamatory of him that he was a death squad commander, condoned the rape of women and girls, was a mercenary, had committed a massacre, was a criminal and had underworld links. Nationwide News relies upon defences of justification and contextual truth. Latham J heard that matter between 20 April and 12 May this year and has reserved her decision. 3 In the course of the proceedings before her Honour, four witnesses gave evidence by video link from Croatia pursuant to s 7 of the Foreign Evidence Act 1994 (Cth). This involved difficult and complicated arrangements including extensive correspondence with the Croatian court. Kirby J referred to these issues in a judgment delivered on 16 April 2009 concerning the application to take evidence in this way. The arrangements that were ultimately put in place were described by his Honour as 'elaborate'. They involved correspondence between the Chief Justice of this Court and the Croatian Ministry of Justice. When witnesses in Croatia eventually gave evidence by video link, a judge of the Croatian court also presided over the proceedings. 4 Section 140 is in the following relevant terms: " 140 Transfer of proceedings to higher court