Dye v Commonwealth Bank of Australia [2010] NSWSC 1237

New South Wales Supreme Court

CITATION : Dye v Commonwealth Bank of Australia [2010] NSWSC 1237

HEARING DATE(S) : 15 October 2010 JURISDICTION : Civil

JUDGMENT OF : McClellan CJatCL

EX TEMPORE JUDGMENT DATE : 15 October 2010

DECISION : 1. Order the transfer of the defamation proceedings to the Federal Court. 2. Order the plaintiff to pay the costs of the defendants wasted by reason of the transfer.

CATCHWORDS : CIVIL PROCEDURE - whether defamation proceedings in the Supreme Court of NSW should be transferred to Federal Court - whether the statutory criteria of s 5(1)(a)-(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) has bee made out - consideration of whether "interests of justice" require the defamation proceedings be transferred to Federal Court

LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987 Australian Human Rights Commission Act 1986 (Cth)

Vivienne Louise Dye (plaintiff) PARTIES : Commonwealth Bank (1st defendant) Barbara Chapman (2nd defendant)

FILE NUMBER(S) : SC 2009/297559

COUNSEL : P E King (plaintiff) PWJ Gray SC/MF Richardson (1st & 2nd defendants)

SOLICITORS : self represented (plaintiff) Clayton Utz (1st & 2nd defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCLELLAN CJ at CL

FRIDAY 15 OCTOBER 2010

297559/09 DYE v COMMONWEALTH BANK OF AUSTRALIA

JUDGMENT 1 HIS HONOUR: The plaintiff brings an application that proceedings 297559/09 in this Court be transferred to the Federal Court. 2 That order is sought pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987. Section 5 provides: "(1) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in the Supreme Court, and (b) it appears to the Supreme Court that: (i) (Repealed) (ii) having regard to: (A) whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court, (B) the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and (C) the interests of justice, it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be, (iii) (Repealed) the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.