Supreme Court New South Wales Medium Neutral Citation: Capilano Honey Ltd v Mulvany (No 3) [2018] NSWSC 767 Hearing dates: 5, 18 May 2018 Date of orders: 30 May 2018 Decision date: 30 May 2018 Jurisdiction: Common Law Before: McCallum J Decision: Pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1897 (NSW), that the proceedings be transferred to the Supreme Court of Victoria Catchwords: JURISDICTION – cross-vesting – application to have proceedings transferred to Supreme Court of Victoria – consideration of relevant factors – delay – jurisdictional nexus – expense and inconvenience – where plaintiffs filed motion after listing of cross-vesting motion to have defendant dealt with for contempt of interlocutory orders – importance of procedural fairness to defendant facing allegations of contempt Legislation Cited: Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), s 5(2) Service and Execution of Process Act 1992 (Cth), ss 15, 17 Supreme Court Rules 1970 (NSW), r 74.8 Uniform Civil Procedure Rules 2005 (NSW), r 44.5 Cases Cited: Capilano Honey Ltd v Mulvany (No 2) [2017] NSWSC 1237 Capilano Honey Ltd v Mulvany [2017] NSWSC 833 Dow Jones v Gutnick (2002) 210 CLR 575; [2002] HCA 56 In the matter of Nail Fairy Bulimba Pty Ltd [2018] NSWSC 446 Jackson v John Fairfax & Sons Ltd (1988) 96 FLR 145 Category: Procedural and other rulings Parties: Capilano Honey Ltd (first plaintiff) Ben McKee (second plaintiff) Simon Mulvany (defendant) Representation: Counsel: ATS Dawson SC, M Cowden (plaintiffs) Defendant self-represented Solicitors: Addisons Lawyers (plaintiffs) File Number(s): 2016/48481 Publication restriction: None Judgment 1. HER HONOUR: These are proceedings in injurious falsehood and defamation arising out of the publication of material on the internet by a Victorian beekeeper, Mr Simon Mulvany, about the sale of honey in Australia. The plaintiffs are Capilano Honey Ltd and its Chief Executive Officer, Mr Ben McKee. Capilano Honey is a publicly listed company registered in Queensland and having its head office in Brisbane. Mr McKee also works and lives in Brisbane. 2. This judgment determines an application by Mr Mulvany to have the proceedings transferred to Victoria, where he lives. Circumstances in which the application is brought 1. The proceedings have taken what might be considered an unusual course. The action was commenced by summons filed in this Court on 15 February 2016. On that date, the plaintiffs made an ex parte application to the duty judge for an order under s 15 of the Service and Execution of Process Act 1992 (Cth) permitting service of the originating process in another State (Victoria). They also sought an order under s 17 of that Act abridging the time within which Mr Mulvany would be required to enter an appearance. The basis for seeking that abridgment of time was the alleged urgency of the interlocutory relief sought: cf s 17(2) of the Act. 2. The matter was stood over to 23 February 2016 for an application by the plaintiffs for interim injunctions requiring Mr Mulvany to remove certain articles from the internet and restraining him from publishing certain representations and imputations. That application came before Campbell J. Mr Mulvany was represented by a Sydney-based solicitor, Mr D Fitzpatrick. By his solicitor, Mr Mulvany proffered undertakings to the Court in lieu of the injunctions sought. Justice Campbell noted the undertaking as follows: "The Court notes the following undertakings proffered by the Defendant, without admission, to the Court: Until final hearing or further order of the Court, the Defendant will not, after 5pm, 24 February 2016, publish the following representations and imputations, or imputations and representations to the same effect: a. That honey marketed and sold under the "Capilano" brand is made wholly or partially from honey that has been imported; b. That honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is toxic or poisonous; c. That honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is contaminated by antibiotics or pollution; d. That the Plaintiffs deliberately mislead consumers to believe that honey marketed under "Allowrie" and "Smiths" brands does not contain imported honey; e. That the Plaintiffs deliberately mislead consumers to believe that honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee" or any other brand, is not dangerous to their health; f. The Second Plaintiff, as CEO of the First Plaintiff, is motivated by greed to sell toxic honey dumped in Australia to Australian consumers; g. The Second Plaintiff, as CEO of the First Plaintiff, put the health of Australian consumers at risk in order to become rich; and h. The Second Plaintiff, as CEO of the First Plaintiff, is dishonest in that he has permitted the First Plaintiff to use inferior untested imported honey, thereby putting the reputation of Australia as a producer of honey at risk, and then lying about it." 1. The interlocutory hearing having been resolved on the basis of the undertakings proffered, the proceedings were assigned to the Defamation List. 2. It was accepted that the matter should proceed on pleadings in accordance with the usual procedure in proceedings in that list. Three separate orders were made requiring the plaintiffs to file a statement of claim (by 3 June 2016, 12 August 2016 and 23 September 2016 respectively). The statement of claim was ultimately filed on 30 September 2016. The defendant, in turn, failed to comply with two orders to file a defence (by 30 November 2016 and 27 January 2017 respectively). A defence was ultimately filed on 5 April 2017. 3. The defence admitted publication of the matters complained of, denied that the representations and imputations pleaded arise or were published of and concerning the relevant plaintiff and otherwise pleaded no substantive defences. There were no further pre-trial applications and no orders were sought or made for discovery or interrogatories. The proceedings were listed for hearing for two days commencing on 25 May 2017. 4. Prior to the hearing date, the parties participated in a mediation. Mr Mulvany was at that time represented by Mr Smark SC, a Sydney-based barrister who had accepted instructions on a pro bono basis. At the conclusion of the mediation, which I understand was the night before the hearing, Mr Mulvany terminated Mr Smark's services. The following morning, Mr Mulvany sought to have the hearing date vacated. The defendants consented to that course on the basis that the undertakings given to the Court by Mr Mulvany at the hearing before Campbell J would be replaced by interlocutory injunctions. Justice Rothman was satisfied that the injunctions sought should be granted. On the application of the plaintiffs, his honour was also persuaded to make orders imposing additional restraints. 5. Justice Rothman made the following orders: "1. Until further order, the defendant is restrained from publishing the representations and imputations set out in paragraph 2a-h of the Court's Order of 24 February 2017, or representations and imputations to like effect [this order was later corrected under the slip rule to reflect the correct date of Campbell J's orders, namely, 23 February 2016]. 2. Until further order, the defendant is restrained from publishing the following representations and imputations, or representations and imputations to the following effect: a. That honey marketed and sold by the First Plaintiff, whether under the "Capilano", "Allowrie", "Smiths", "Wescobee", or any other brand is dangerous or contaminated. b. That the First Plaintiff, or any of its officers, are corrupt. c. That the First Plaintiff, or any of its officers, are bullies. d. That the First Plaintiff, or any of its officers, are dishonest. e. That the First Plaintiff illegally imports and sells honey. f. That the First Plaintiff exploits or mistreats bees. g. That the First Plaintiff has demanded that retailers remove competitor brands from their shelves. h. That the First Plaintiff or any of its officers are misogynist or sexist. i. That the First Plaintiff has bribed Choice and/or public officials. j. That the First Plaintiff is in breach of labelling laws. k. That the First Plaintiff has lobbied for a change to labelling laws to dilute or weaken them. I. That the First Plaintiff has damaged or tarnished the Australian honey producing industry and Australian beekeepers. 3. Until further order, the defendant, by 4pm on 31 May 2017, remove or cause to be removed the following publications, tweets and posts: a. the post referred to in paragraph 1aii of the Court's Order of 24 February 2017; b. the matters set out under the heading "Relief Claimed" in paragraph 2i-liv of the statement of claim filed herein; c. the matters set out in Schedule A to these orders; d. the matters set out in Schedule B to these orders. 4. Until further order, the defendant is restrained from publishing the publications, tweets and posts referred to in order 3, or any publication, tweet or post to like effect." 1. In a judgment publishing reasons for making those orders, Rothman J said at [3] (emphasis added): "Notwithstanding the prejudice to the plaintiff, they were prepared to consent to the vacation of the final hearing dates, but press, in the interim, the making of interlocutory orders and the continuation of interlocutory orders. The Court has treated the application for interlocutory orders as if they were made ex parte, notwithstanding the presence in the Court of the defendant. The reason is that, as earlier stated, the defendant was no longer represented and had dismissed his legal representatives the evening before the proceedings were due to commence." 1. His Honour reiterated that the orders should be regarded as having been made ex parte at [5] of the judgment, saying: "While the defendant addressed the Court on the nature of the orders and whether there had been deliberate or reckless or careless breaches of previous undertakings, the lack of opportunity for the defendant to prepare properly for the application for interlocutory orders and/or the hearing is such that these interlocutory orders ought properly to be treated as if they were made ex parte." 1. The proceedings came back into the Defamation List on 16 June 2017. Shortly before that date (on 14 June 2017), Mr Mulvany (still acting for himself) served a notice of motion seeking to have the orders made by Rothman J varied so as to delete the restraint in order 2(c) (which restrained him from publishing an imputation to the effect "that first plaintiff, or any of its officers, are bullies"). The motion also sought other relief which was later acknowledged to be misconceived. 2. On 16 June 2017, in response to a request as to whether it would assist Mr Mulvany to have a referral for pro bono legal assistance, he said: "Absolutely. Obviously, I'm quite ignorant to how it all works, even to have the proceedings here and not Melbourne. I'm a single father. I tragically lost my partner last summer, and my son's mum. I'm actually probably his full time carer, is really what I am." (emphasis added) 1. Asked what connection the proceedings had with Sydney, the plaintiffs submitted "that's where everybody was … except Mr Mulvany". I referred Mr Mulvany to the Registrar for referral to a barrister or solicitor on the pro bono panel for the purpose of obtaining advice in relation to his notice of motion and representation at the hearing of that motion: Capilano Honey Ltd v Mulvany [2017] NSWSC 833. 2. Mr Mulvany subsequently obtained the services of a Victorian solicitor, Mr Morehead, who appeared at the hearing of the motion on 4 August 2017. Mr Morehead pressed only the relief sought in respect of order 2(c) of the orders of Rothman J. During that hearing, Mr Morehead reiterated Mr Mulvany's concern as to having to conduct the case in Sydney and foreshadowed an application to have the proceedings transferred to that State. 3. The plaintiffs sought to have Mr Mulvany's motion determined by reference to a proposed amendment to their pleading which had evidently been foreshadowed at the hearing before Rothman J but never filed. The hearing of the motion was adjourned to allow the plaintiffs to make that amendment. The amended pleading was filed on 14 August 2017 and I then heard further argument on the motion. 4. I determined Mr Mulvany's application on 1 September 2017, granting the narrowed relief sought: Capilano Honey Ltd v Mulvany (No 2) [2017] NSWSC 1237. On the same date, I directed the defendant to file any application to transfer the proceedings to Victoria by 22 September 2017 and to file and serve his amended defence by 20 October 2017. 5. The notice of motion seeking transfer of the proceedings to Victoria was filed on 26 September 2017. No amended defence was filed. 6. On four subsequent occasions, listings were vacated by consent on the basis that the parties were attempting to resolve the proceedings. The proceedings ultimately came back before the Court on 2 March 2018. On that date, I made a further direction requiring the defendant to file and serve any amended defence by 28 March 2018. At the same time, I listed the defendant's cross-vesting application for hearing on 20 April 2018. On that date, the parties were still engaging in settlement discussions and requested a further adjournment of 2 weeks. 7. In the meantime, on 5 April 2018, Mr Morehead filed a notice of ceasing to act. Accordingly, at the hearing of the application to have the proceedings transferred to Victoria, Mr Mulvany was again self-represented. Principles to be applied 1. Mr Mulvany's application invokes s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), which relevantly provides: "(2) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court ); and (b) it appears to the first court that: … (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory; the first court shall transfer the relevant proceeding to that other Supreme Court." 1. The defendants submitted that there was "an insurmountable hurdle to the application even being entertained" because it had not been brought as soon as practicable after commencement of the proceedings, as required under the rules: r 44.5 of the Uniform Civil Procedure Rules 2005 (NSW) (r 74.8 of the Supreme Court Rules 1970 (NSW) is in the same terms and has not been repealed). 2. Mr Dawson SC, who appears for the plaintiffs, submitted that compliance with the rules is "essential", relying on the decision of Jackson v John Fairfax & Sons Ltd (1988) 96 FLR 145 at 152-153. The decision in that case was concerned with the requirement to include the name of the cross-vesting legislation above the title of any application invoking that law. In that context, Miles CJ said, "it is essential that practitioners comply with the rules." As submitted by Mr Dawson, the requirement to bring any application in a timely way is a more substantive requirement. Delay in bringing an application is certainly relevant and may in some instances be determinative. However, I do not think the decision in Jackson is authority for the proposition that the Court is required or even permitted to decline to entertain an application on the basis of a failure to comply with the rules without otherwise considering the merits of the application. 3. The principles and authorities to be applied in determining a cross-vesting application were summarised uncontroversially in the plaintiffs' written submissions. In a recent decision of this Court, Brereton J noted that it is not necessary to show that the Court in which the proceedings were instituted is a "clearly inappropriate forum"; the central question is, which is the more appropriate Court? As his Honour explained, "appropriateness" involves questions of jurisdictional nexus as well as mere convenience: In the matter of Nail Fairy Bulimba Pty Ltd [2018] NSWSC 446 at [3]. 4. Had the present application been brought as soon as practicable, the case for transferring the proceedings would have been overwhelming. Apart from the fact that the plaintiffs' lawyers are based in Sydney, the proceedings have little relevant jurisdictional nexus or practical connection with New South Wales. 5. As already noted, the first plaintiff is a public-listed company registered in Queensland and has its head office in that State, where the second plaintiff lives. The company carries on business throughout Australia, including in New South Wales but also in Victoria. 6. The publications complained of are internet publications. The place of the tort is accordingly the place where each article is downloaded: Dow Jones v Gutnick (2002) 210 CLR 575; [2002] HCA 56. The plaintiffs say that the publications were published throughout Australia (including New South Wales). However, it was submitted that the publications are likely to have the most significant impact in New South Wales, since that is Capilano's biggest sales market. There is a degree of speculation in that submission. Apart from anything else, it is not known where or how often the articles have been downloaded and what impact that might have had on sales in any particular place. Assuming the submission turns out to be correct, it indicates some jurisdictional nexus with New South Wales. However, in my view, it is a consideration of slight weight in circumstances where the principal relief sought is injunctive relief against a person resident in Victoria. In considering jurisdictional nexus, the residence of the defendant attracts greater significance: Nail Fairy Bulimba at [5]. 7. The question of the applicable law is a neutral consideration. The law of injurious falsehood is taken to the same across the two States (the common law being coherent across Australia). Both States have passed the national uniform defamation law, which was intended to create a coherent Australian defamation law. Either Court would have power to grant injunctive relief with effect throughout Australia. 8. As to the question of convenience, the principal connection with New South Wales is that the plaintiffs' legal advisors are located in Sydney. It was submitted on that basis that "the most inconvenience and expense will be suffered by the plaintiffs". They placed considerable emphasis on the fact that Mr Mulvany has previously been able to travel to Sydney (for the mediation and the hearing scheduled for last May). It was submitted that Mr Mulvany "will not suffer any inconvenience or additional cost by the proceedings remaining in Sydney". I do not accept that submission. The uncontested evidence is that Mr Mulvany is the sole parent of an eight-year old child, the child's mother being deceased. I do not understand how it could seriously be contended that it would not cause "inconvenience" for him to have to travel to Sydney for court. The fact that he has attended hearings and a mediation in Sydney before establishes only that he has been inconvenienced before. I do not understand why the interests of an unrepresented defendant and a young child should weigh less in the balance than the convenience of Sydney lawyers. 9. The plaintiffs noted that the defendant has established a "GoFundMe" campaign to raise legal costs for the defence of these proceedings and has put on no evidence as to the use of the funds raised. The evidence suggested that there may have been two separate campaigns each raising in the order of between $20,000 to $25,000. However, as effectively acknowledged at the earlier hearing on 16 June 2017, the plaintiffs have incurred fees well in excess of those amounts. I do not think it can seriously be doubted that this is a case of a well-funded plaintiff against a defendant with less ready access to legal representation. That is significant having regard to the complexity of the case. 10. I acknowledge that the delay in bringing the application is a significant consideration weighing against making the order sought but it must be considered in context. The plaintiffs submitted that "the effect of the delay has been that the plaintiffs have engaged representatives who work in Sydney, rather than seeking out representatives based in Melbourne". However, as recorded above, the first step taken in the proceedings was an ex parte application to the duty judge for an order under s 15 of the Service and Execution of Process Act permitting service of the originating process in another State. The decision had obviously been made to retain the Sydney lawyers who prepared that application (including counsel who appeared on the application) before any cross-vesting application could have been made. Had a cross-vesting order been made upon the very first appearance for the defendant in the proceedings, it would still have raised an issue as to whether to engage new lawyers or else incur the additional expenses now complained of. That is a function of the (Queensland-based) plaintiffs' choice to use Sydney lawyers to sue a Victorian. 11. Undoubtedly, the additional legal work that has been undertaken in the meantime has weighed the balance convincingly in favour of keeping on the Sydney legal team, with the additional expense that will entail. The plaintiffs put on evidence (on information and belief) that, had the application been made at the commencement of the proceedings and been successful, the Sydney lawyers would have advised Capilano of the additional travel costs involved and that Capilano "would have asked for a recommendation for alternative solicitors and counsel located in Melbourne". Noting how much work must already have been undertaken before the first ex parte application, however, I am not persuaded that those events would have produced a decision to retain new lawyers. I do not accept that the "the most inconvenience and expense will be suffered by the plaintiffs" if the proceedings are transferred (as against not being transferred). Inconvenience and expense are relative concepts, to be weighed differently in the case of a public-listed company and its CEO than in the case of an individual in the circumstances of Mr Mulvany. 12. For those reasons, but for one complication, I consider that the more appropriate Court is the Supreme Court of Victoria. 13. The complication is this. At the conclusion of argument on the first day of the hearing of Mr Mulvany's application (4 May 2018), the plaintiffs raised "one final matter", which was that a motion had been filed that morning (but not yet served) seeking to have Mr Mulvany dealt with for contempt of court on the basis that he had disobeyed and in some respects continued to disobey the orders of Rothman J. I do not understand why that issue was raised last, not first, at the hearing of the cross-vesting application. It introduced a significant complexity. An allegation of contempt of court should ordinarily be dealt with promptly, to preserve the integrity of the Court. Further, this Court is clearly the "more appropriate" Court to determine a question of contempt of its own orders. Indeed, it is doubtful whether the Court of another State would have authority to determine that question. 14. Mr Mulvany had no notice of the contempt motion until minutes before the commencement of the hearing of his motion to have the proceedings transferred. Accordingly, it was necessary to afford him an opportunity to consider and make submissions on that issue and, for that reason, to reserve my decision. That is reason alone why the issue should have been raised at the outset of what has become a complex, truncated hearing. 15. The Registry made the contempt motion returnable in the Defamation List on 18 May 2018. By that date, the motion had been served personally on Mr Mulvany but no supporting affidavit had been filed or served. Mr Mulvany submitted that, in the circumstances, the filing of the contempt motion amounted to an abuse of process and that the motion should be disregarded. 16. The motion having been filed, I did not consider that it was open to me to disregard it. However, in circumstances where I considered there was otherwise good reason for transferring the proceedings to Victoria, and having regard to the timing of the contempt motion, I called on the plaintiffs to say why it should be dealt with at this stage. 17. Unfortunately, the matters raised on 18 May 2018 in response to that issue prompted the need for yet another round of further submissions. One aspect of the timing of the filing of the motion was that, while the original ex parte application was based on the alleged urgency of the matter, almost a year passed between the orders of Rothman J and the filing of the contempt motion alleging ongoing breach of those orders. In addressing that issue, Mr Mulvany said that he had asked his former solicitor, Mr Morehead, whether he had received "anything in writing about any of the articles being in contempt" and that Mr Morehead said that he had not. 18. The plaintiffs responded by noting that a letter had been sent to Mr Morehead dated 1 June 2017 contending that publications required to be removed had not been removed and specifying the outstanding publications. Mr Mulvany noted that the letter had been sent almost a year ago and submitted that it confirmed the plaintiffs had not complained in writing since that time about any articles that remain on the internet. The plaintiffs were then allowed an opportunity to put on all of the material said to show that Mr Morehead was informed in writing of the alleged breaches. 19. A lengthy further affidavit was filed by the plaintiffs setting out the relevant course of dealings between the parties concerning the removal of material said to fall within the scope of the orders of Rothman J. In short, the affidavit showed: 1. The letter of 1 June 2017 identified 3 links said to be in breach of order 2 and 57 links said to be in breach of order 3; 2. Mr Morehead provided a response the following day. As to many of the links, the response was that they were unavailable; as to others, the response was that, although the links were active, they had been removed from Mr Mulvany's Facebook page; Mr Morehead further contended that other links were either not referred to in the orders or were not within Mr Mulvany's power to remove or were identified by dates that did not match the orders. The letter otherwise said the plaintiffs' letter had assisted Mr Mulvany to identify material that ought to have been removed and that he had removed it; 3. There were further email exchanges, not all of which are before the Court; 4. The correspondence rested with an email from the plaintiffs' solicitor dated 9 June 2017 thanking Mr Morehead for his email (evidently a part of settlement negotiations); saying "I'll get instructions in the coming days and get back to you next week" and in the meantime identifying 3 publications alleged to remain in breach of the orders; 5. There was no further written communication with Mr Morehead. The affidavit says there were ongoing negotiations in telephone discussions after that which included discussion of alleged breaches but gives no detail of those discussions. 1. The next correspondence concerning breach of the orders was a letter dated 24 April 2018 sent directly to Mr Mulvany. That was after the date initially fixed for the hearing of his transfer application (18 April 2018) which, as noted above, was adjourned by consent because the parties were still engaging in settlement negotiations. Mr Mulvany responded by email saying "I am reluctantly deleting the posts that you think are non-compliant with the orders" and that he had every intention to abide by court orders. He said there were some as to which he wanted to obtain legal advice which had previously been "cleared" by Mr Morehead. 2. As correctly submitted by the plaintiffs, it is Mr Mulvany's duty to ensure that he complies with the Court's orders. The plaintiffs have repeatedly pointed out to Mr Mulvany that they should not have the burden of alerting him to the need to comply with the orders. 3. That said, the correspondence reveals that there is a significant contest between the parties as to a number of issues including what constitutes "publishing" for the purpose of the orders, whether material is available on the internet, whether it is within Mr Dowling's power to remove certain material and, as to some of the articles complained of by the plaintiffs, whether they convey the meanings Mr Mulvany is restrained from publishing. The recent letter sent to Mr Mulvany explains the view taken by the plaintiffs as to the meaning of "publishing" for the purpose of the orders: "Similarly, for the avoidance of doubt, our clients' view is that material may be 'published' by you in multiple ways including: 'sharing' of others' material on your online platforms (by way of hyperlink or otherwise); knowingly hosting others' content on your online platforms; and commenting or adopting/endorsing others' comments. To further clarify, our clients' view is that comments on posts may have the effect of making the combined publication (post + comments) breach orders; and/or themselves be in breach of orders. Accordingly, we would request that you bear both of these points in mind when considering how to deal with any content you agree appears to breach orders. To the extent that material published by you some time ago remains accessible, our clients consider this to amount to ongoing publication." 1. In large measure, those are the same issues as are raised by the substantive claim and the existing defence. 2. In my view, that is a significant issue in determining the fate of the contempt motion. I accept without hesitation that an allegation of contempt should ordinarily be determined promptly, to preserve the integrity of the court. However, the ultimate guiding principle must always be to act in accordance with the dictates of justice. The contempt alleged in the present case relates to interlocutory orders as to which there has never been a final hearing. I acknowledge that undertakings were proffered in lieu, at the outset, but that was done "without admissions". The orders made by Rothman J were unusual in that they were made by consent but expressly characterised by his honour as having effectively been made ex parte. 3. I understand, as noted on behalf of the plaintiffs, that the fact that there has been no final hearing is due to the vacation of the hearing date after Mr Mulvany terminated the services of lawyers who had agreed to act for him pro bono. The reasons for that decision are unknown and ought not to be the subject of any speculation. The net result is that the proceedings are back at the point of needing to have a final hearing, which should be conducted in the more appropriate court. Whereas Mr Mulvany seeks to be in a position where he can defend a civil claim on a final basis in the jurisdiction in which he lives, the contempt motion seeks to have the substantially the same issues determined in this State, by reference to interlocutory orders, with punitive sanctions including the risk of imprisonment in this State (away from Mr Mulvany's son). The stakes are high for Mr Mulvany. 4. It was submitted on behalf of the plaintiffs that, once the Court is seized of an application to have a person dealt with for contempt, unless there is a substantive reason to dismiss the application summarily, the Court is under a duty to determine the application (implicitly, and to do so promptly). The plaintiffs submitted that the impact the contempt motion might have on an existing cross-vesting application would not afford a proper basis for declining to determine it. It was submitted that would be to overlook the nature of the contempt application and would be a wrong exercise of power. 5. Certainly, as already acknowledged, an allegation of contempt should ordinarily be addressed promptly. However, the law does recognise circumstances in which the due prosecution of punitive sanctions might appropriately be deferred. An example is the authority to direct a writ to "lie in office", a practice recognised in the following observations of Young J (as his Honour then was) in Re Rainbow Systems of Australia Pty Ltd; Wily v Parker (1996) 21 ACSR 171 at 172: "I should say this, however, that there is provision under s 486B of the Corporations Law , which was inserted, as was s 530C, by Act No 210 of 1992. I think also the time has now been reached where the public expects that if people do not comply with the Corporations Law in respect of failed companies they can expect to be pursued. There is power under s 486B to arrest a company director who is concealing books from the liquidator. It seems to me that, generally speaking, if a warrant is issued under s 530C and produces a nil result an order should be made for the arrest of the directors, but for the writ to lie in office for, say, seven days so that they can explain to the court what has happened to the records so that the law does not take the course it would otherwise take." 1. In my assessment, in the unusual circumstances of this case, the interests of justice will best be served by deferring the determination of the issues raised by the contempt motion and transferring the proceedings to Victoria to allow Mr Mulvany to defend the primary claim in his home State. 2. I appreciate that there are aspects of this determination that are unsatisfactory. In the complex circumstances of this case, no solution is ideal. Either the determination of the contempt motion must be deferred to abide final hearing of the civil claim in Victoria, or Mr Mulvany must be compelled to defend the contempt motion outside his home State. Neither is ideal. 3. I am satisfied that to proceed first to hear a motion to have Mr Mulvany dealt with for breach of the interlocutory orders would expose Mr Mulvany to a real disadvantage. One of the submissions repeatedly made at the hearing was that the plaintiffs would consent to Mr Mulvany appearing by audio-video link. I do not regard that to be a satisfactory solution, having regard to the seriousness of the allegations made. A defendant to a criminal proceeding would not be expected to have to defend himself or herself in that way. It is difficult to understand why the proceedings were ever commenced in this State, other than for the reason that Capilano's lawyers are based in Sydney. The allegation of contempt having been made, it is all the more important for Mr Mulvany to have a process that is fair. 4. I accept that issues raised by the contempt motion will have to be determined at some point, whether by deferral until after final hearing of the civil claim or by separate summons. In the circumstances, there is a theoretical risk of inconsistent findings but, upon reflection, that seems unlikely in practice. On the contrary, the availability of a final judgment after a contested hearing in Victoria is likely to provide a surer, clearer basis for determining the issue of contempt than on the basis of interlocutory hearings. 5. For those reasons, I make the following order: 1. Pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1897 (NSW), that the proceedings be transferred to the Supreme Court of Victoria. ********** 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. Decision last updated: 30 May 2018