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 (1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court. ***** (3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied: (a) in the case of a motor accident claim or a workplace injury damages claim: (i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and (ii) that the case involves complex legal issues or issues of general public importance, or (b) in any other case: (i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or (ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court." 5 The present application is limited to a reliance on the 'other sufficient reason' provision. That is said in this case to be the procedural disadvantage that would flow to Nationwide News if the proceedings remained in the District Court and similar arrangements for the taking of evidence by video link from Croatia were necessary. Nationwide News says that they will be. 6 In Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924 at [3] - [4], Bryson J said of the predecessor to s 140: "[3] The power is a discretionary power. The terms of the legislation do not indicate expressly any relevant considerations for exercise of the discretion, but provide for the imposition of terms, including requiring payment of costs and security for the amount claimed. [4] These are reported decisions which refer to this power: I was referred to Ex parte Delporte; Re Thiess Bros Pty Ltd [1965] NSWR 1468 (Asprey J) and Ex parte Dusmanovic; Re Dusmanovic [1967] 2 NSWR 125 (Moffitt J). No limits or restrictions on the discretion are established by authority. When asked to exercise this power the Court should, in my opinion, 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." 7 Nationwide News proposes to plead defences of substantial truth in response to allegations that the following defamatory imputations were conveyed: "5(a) and 8(a): The plaintiff is wanted in Croatia for the alleged torture and murder of civilians and prisoners of war in 1991 and 1993. 5(b) and 8(b): The plaintiff may have been guilty of offences that carry a maximum penalty of 20 years imprisonment". 8 Section 7 of the Foreign Evidence Act is as follows: " 7 Orders for taking evidence abroad (1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order, relating to a person outside Australia: (a) for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or (b) for issue of a commission for examination of the person on oath or affirmation at any place outside Australia; or (c) for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of the person or cause it to be taken. (2) In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following: (a) whether the person is willing or able to come to Australia to give evidence in the proceeding; (b) whether the person will be able to give evidence material to any issue to be tried in the proceeding; (c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order." 9 Section 10 is presently relevant because the District Court is not a 'superior court' for the purposes of s 7. Section 10 (1) is as follows: " 10 Orders for taking evidence abroad--inferior courts (1) The Supreme Court of a State or Territory may, on the application of a party to a proceeding before an inferior court in that State or Territory, exercise the same power to make an order of the kind referred to in Division 1 for the purpose of that proceeding as the Supreme Court has under that Division for the purpose of a proceeding in the Supreme Court." 10 Nationwide News contends that even though this Court can exercise its powers under s 7 in relation to proceedings in the District Court, there was a high level of procedural complexity involved in arranging for evidence to be taken by video link from Croatia in the earlier proceedings and that there is a high likelihood that similar arrangements, attended by similar complications, will be required in the District Court proceedings. The logistical and procedural steps involved in this process are potentially increased when the proceedings are being conducted in a court other than the court with the power to make all of the necessary orders. Nationwide News submits that the proceedings are more likely to be conducted and resolved consistently with the object and purpose of Part 6 of the Civil Procedure Act if the proceedings are transferred to this Court. 11 Ex parte Heiliger (1897) 13 WN (NSW) 170, dealt with a similar application. That case considered a situation where the issue was whether there were significant procedural advantages to the transferee court. At 172 Cohen J said the following, citing Banks v Hollingsworth [1893] 1 QB 442 at 447-8: "The question upon an application of this nature is whether, considering all the circumstances of the case and the interests of the parties and public justice, the case ought to be tried in the High Court rather than in that in which the action was brought, and the Judge who has to determine the question of removal must consider all the circumstances. He must consider the amount of the claim; it may be important if the amount claimed is very small, yet, if the case involves questions of a complex or highly difficult nature requiring the knowledge and experience of the Judges of the superior Court for their determination, the Judge may well be of the opinion that it should be tried in the superior Court. There are many other circumstances which would properly influence his decision as to the propriety of removal, such, for instance, as the Court in which justice will in the particular case be more speedily arrived at; for it might happen that in the superior Court a case involving some difficulty could not be reached for some months, yet the inferior Court might be perfectly able to try it and to try it at once. I do not say that upon any one of such points as I have suggested being clearly made out a Judge would be obliged to take either the one course or the other as regards the removal of the action; all that the clause means in my opinion is that the Judge must say, after a reasonable, judicial and careful consideration of the circumstances, whether an action ought rather to be tried in the High Court or in the Court in which it was brought; if he thinks it ought, he will grant the writ of certiorari for its removal; if he thinks it ought not, it will remain in the inferior Court; his conclusion may depend on many considerations, and must be a matter of discretion." 12 In addition to the way in which Nationwide News puts its case on this application is the faint suggestion by it that the subject matter of the proceedings warrants them being heard in this Court. There are defences of truth suggesting that Mr Vasiljkovic committed serious offences during an armed conflict and he contends that the District Court ought not to hear the case for that additional reason. 13 Mr Vasiljkovic's response to the application emphasises that the question of whether or not overseas witnesses are or may be required to give evidence has not yet clearly emerged so that consideration of the issue at this stage is to some extent premature. In any event, he contends that there are no considerations that would justify the transfer in this case. Consideration 14 In my opinion the principal consideration is whether or not the proceedings could be heard in the District Court, having regard to the possible need to make international arrangements with Croatia, without undue disruption, difficulty, delay or added expense. The argument that it could not appears to suggest, because the District Court is not relevantly a superior court, that the necessary international requests and diplomatic intercessions could not be achieved either as conveniently as if the case were transferred to this Court or at all. 15 I disagree. The District Court retains a wide and extensive jurisdiction to hear all manner of significant litigation in this State. The present case is an example of an important and publicly interesting dispute that that court has the jurisdiction, the resources and the expertise to determine. It is not without significance that the Foreign Evidence Act specifically contemplates that applications under s 7 of that Act can be made by a party to a proceeding before an inferior court and that this Court in such circumstances can exercise the same power to make an order of the kind referred to in s 7 for the purpose of that proceeding as this Court has under that section for the purpose of a proceeding in this Court. I fail to see how the effectively extra-curial administrative arrangements that may be required for the taking of evidence from witnesses in Croatia will produce any procedural disadvantage of any kind to either party in this case. It is not clear that there will in fact be any disadvantage at all when regard is had to the fact that the arrangements are likely to be difficult no matter where the proceedings are conducted. 16 I do not consider that any "sound ground or … good reason why an order ought now to be made" has been established. The application should be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.