Supreme Court New South Wales Medium Neutral Citation: Findex Group Ltd v iiNet Ltd [2020] NSWSC 347 Hearing dates: 1 April 2020 Date of orders: 01 April 2020 Decision date: 01 April 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order that proceeding 2016/271090 in this court be transferred to the Supreme Court of the Australian Capital Territory pursuant to section 5(2) and section 5(6) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). 2. Order that the costs that were reserved by order 5 of the orders made on 19 October 2018 (see Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567) be borne as follows: that the plaintiffs pay the costs of that part of the amended notice of motion (filed 4 July 2018) which was heard in September 2018 and determined in October 2018. 3. Note, for the avoidance of doubt, that order 6 made on 11 September 2019 (see Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198) did not (and was not intended to) incorporate costs in respect of that portion of the amended notice of motion, filed 4 July 2018, that was dealt with in Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567. 4. Otherwise make no further orders in relation to the costs of the proceeding as a whole, on the basis that those costs are to be dealt with by the Supreme Court of the ACT when the matter is transferred to that Court. Catchwords: CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule Legislation Cited: Australian Consumer Law s 18 Civil Procedure Act 2005 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 5(2) Uniform Civil Procedure Rules 2005 (NSW), r 36.17 Cases Cited: Bankinvest AG V Seabrook (1988) 14 NSWLR 711 Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567 Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Newmont Yandal Operations Pty Limited v The J Aron Corporation & The Goldman Sachs Group Inc [2007] NSWCA 195 Texts Cited: Conflicts of Laws in Australia (10th edn), Davies and Nygh Category: Costs Parties: Findex Group Ltd (First Plaintiff) Spiro Paule (Second Plaintiff) Danielle Ludbey (Third Plaintiff) Phillip Hart (Fourth Plaintiff) iiNet Ltd (First Defendant) iiNet (Ozemail) Pty Ltd (Second Defendant) LinkedIn Australia Pty Ltd (Third Defendant) David Keith McKay (Fourth Defendant) Representation: Counsel: M A Friedgut (Plaintiffs) P Dunning SC with M Karam (Fourth Defendant) Solicitors: Harmers Workplace Lawyers (Plaintiffs) Just Dispute Resolution (Fourth Defendant) File Number(s): 2016/00271090 Publication restriction: Nil Judgment 1. HER HONOUR: This matter has come before me on an amended notice of motion filed by the fourth defendant on 31 March 2020 seeking, amongst other things, for the proceeding to be cross-vested to the Supreme Court of the Australian Capital Territory pursuant to s 5(2) and/or s 5(6) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (Cross-Vesting Act). There is no resistance to the making of an order of that kind. 2. Pursuant to s 5(2) of the Cross-Vesting Act, proceedings are to be transferred from this Court to the Supreme Court of another State or Territory where this Court is satisfied, inter alia, that the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court (see s 5(2)(b)(i)) or it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of that other State or Territory (see s 5(2)(b)(iii)). Pursuant to s 5(6) of the Cross-Vesting Act, where a court transfers a proceeding to another court under a law or laws relating to cross-vesting of jurisdiction and it appears to the first court that there is another proceeding pending in the first court that arises out of, or is related to, the first-mentioned proceeding and it is in the interests of justice to do so, then the first court shall transfer the other proceeding to the other court. 3. In Bankinvest AG V Seabrook (1988) 14 NSWLR 711 (Bankinvest) the Court of Appeal (Rogers AJA, with whom Street CJ and Kirby P agreed) considered the principles applicable on an application under s 5(2) of the Cross-Vesting Act and indicated that the test to be applied focuses on what is the more "natural forum" for the case to be tried, requiring the court to look at numerous factors going to the interests of the parties and the interests of justice. Street CJ said (at [713] - [714]): The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice ... It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. 1. Davies and Nygh, in Conflicts of Laws in Australia (10th edn) at [6.26] consider that this approach means that "other than in exceptional circumstances, courts will transfer proceedings to the court to which that proceeding normally belongs, especially where all the matters raised in that proceeding are within the proper jurisdiction of the other court" and go on to add that: If the proceedings in the forum fall partly within the proper jurisdiction of the forum and partly within the proper jurisdiction of another superior court, the proceeding will be retained or transferred depending on which court has the most substantial connection with the proceedings as a whole. [citation omitted] 1. The case presently in this Court had its genesis in the making and execution in 2016 of search orders pursuant to which a volume of documents of the fourth defendant were obtained under the compulsion of the court processes. There are now two proceedings on foot in the Supreme Court of the ACT that have been brought by the plaintiffs in the present proceeding: one is for breach of a non-disparagement clause and for breach of s 18 of the Australian Consumer Law out of publications by the fourth defendant; the other is for defamation arising out of a publication by the fourth defendant. There is another proceeding in the Supreme Court of the ACT that has been brought by the fourth defendant for trespass arising out of the execution of the 2016 search orders. Further, the fourth defendant in the current proceeding filed a motion seeking damages arising out of the undertaking as to damages given at the time of the making of the search orders (and that motion has already been cross-vested to the Supreme Court of the ACT). Insofar as the various proceedings in the Supreme Court of the ACT raise issues as to the circumstances in which the search orders were made or the manner in which the search orders were executed (as I understand will be the case) it is obviously in the interests of justice that all disputes as to the search orders be dealt with in the one court. 2. Therefore, by consent I will make orders in accordance with the short minutes of order dated 31 March 2020, which I will initial and date, and which will have the effect of transferring these proceedings to the Supreme Court of the ACT. 3. I will also make orders in relation to one aspect of the matter that needs to be clarified, and to the extent necessary I will rely on the "slip rule" to do this (in accordance with r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW)). That matter is as to the ambit of the costs order that I made in October 2019; and the issue arises because the fourth defendant has now proposed short minutes of order setting out a regime for the exchange of written submissions in support of his application for a costs order now to be made in order to complete the question of costs before the proceeding is transferred to the Supreme Court of the ACT. In essence what was put was that as a matter of efficiency the "undealt with" costs orders of the present proceeding to date (i.e., costs other than those dealt with in October 2019 – see below). 4. In October 2018, in reasons that were published in Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567 (2018 Judgment), I dealt with an application that had been brought by the plaintiffs for access to documents that had been obtained on execution of the September 2016 search order (that application being for access to all documents other than "admittedly irrelevant" documents or those in respect of which privilege or public interest immunity had been claimed and had been found to exist). That was the relief sought on a motion that ultimately became the amended notice of motion filed on 4 July 2018. Initially part of the relief sought in the plaintiffs' notice of motion had been a release from the Harman undertaking (Harman v Secretary of State for the Home Department [1983] 1 AC 280) in relation to those documents. 5. By the time that the amended motion was heard by me in September 2018, the plaintiffs only pressed for leave to have access to the documents (leaving undealt with the application for a release from the Harman undertaking). I was of the view the plaintiffs had failed in substance in the relief they sought and (as expressed in my reasons at [137] of the 2018 Judgment) I was inclined to rule that the plaintiffs should pay the fourth defendant's costs of the motion on the basis of the general rule that costs should follow the event; but I nevertheless reserved the question of costs on that occasion. 6. What happened then in the matter is set out in my subsequent reasons published in September 2019 in Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198 (2019 Judgment) at [2]-[30]. By that stage what was before me was effectively an application for the balance of the relief that had been sought in the amended notice of motion filed 4 July 2018, namely, an order for release from the Harman undertaking in respect of particular documents. 7. I concluded (see [166] of the 2019 Judgment), that the appropriate order as to costs was that the plaintiff should pay 80% of the fourth defendant's costs of the plaintiff's notice of motion. This was for the reason that it had been necessary for the plaintiffs to obtain leave for the release of the Harman undertaking and they had been unsuccessful in obtaining such leave within respect to the bulk of the documents. 8. The issue that emerged in the course of submissions today (as to the orders now to be made for the cross-vesting of the present proceeding) was as to whether the costs order made in 2019 (order 6) subsumed the costs that had been reserved in 2018. My intention at the time was not that this be the case. My intention in the 2019 Judgment was to deal with those aspects of the amended notice of motion and other motions (not presently relevant) then before me. I did not have in mind that there had been reserved costs in respect of the earlier part of the notice of motion with which I had not yet dealt. That should be clear from the reasons that were set out in my 2019 Judgment. 9. I consider that, in circumstances where the matter is now being cross‑vested to the Supreme Court of the ACT, I should make clear the ambit of the costs order made in 2019 (order 6) (as not including the costs of that part of the motion that was dealt with in 2018) and that it is appropriate now to deal with the question of the costs that were reserved in respect of that part of the motion that was disposed of in the 2018 Judgment. 10. The submission made for the plaintiffs in that regard was to the effect that: the whole of their motion was about obtaining access to the documents to which they have ultimately obtained access; the search orders had been "vindicated"; the search order process was properly executed; all of the documents (that I ordered in 2019 be returned to the fourth defendant or otherwise destroyed) will now be sought to be returned in the course of the proceedings in the Supreme Court of the ACT; and all of the documents will be used in the litigation between the parties. (I have some doubts as to whether or not the last of those propositions is likely to be the case given the extent of the documents the subject of the search orders, but I am not here called upon to rule in relation to any issues in respect of the execution of the search orders or any costs relating to that. All I am proposing here to do is to deal with the costs of that part of motion on which the plaintiffs were unsuccessful when the matter was before me in September 2018; and which were reserved in October 2018.) 11. I do not accept the submission that the matter that was before me is properly characterised as the one overall application for access to documents. It was prepared and conducted by the plaintiffs in stages, with piecemeal applications for different relief. It is appropriate, in my view, that the costs be dealt with to cover those piecemeal aspects of the motion. 12. Insofar as it was submitted by counsel for the plaintiffs that it would be unfair for me to rule on the matter at this stage, I reject that. (I add here that I cannot see any procedural unfairness in circumstances where: I have heard submissions from both parties on this aspect of the costs issue, which is confined relevantly to the costs that were reserved in October 2018; counsel for the plaintiffs was well placed to address me on that issue having appeared in the matter both in September 2018 and in October 2019; and it was not suggested what, if any, evidence from the parties would be relevant to the question of what I intended at the time the October 2019 costs order was made.) I do not accept that it is consistent with the just, quick and cheap resolution of the real issues in dispute (see s 56 of the Civil Procedure Act 2005 (NSW)) to put in place another regime for (lengthy) submissions (and/or evidence) in relation to an issue that here turns in my view as to whether or not the costs order made at the time of the 2019 Judgment was intended to subsume and incorporate the costs left reserved at the time of the 2018 Judgment. 13. In Newmont Yandal Operations Pty Limited v The J Aron Corporation & The Goldman Sachs Group Inc [2007] NSWCA 195, Spigelman CJ (with whom Handley AJA agreed) in relation to the exercise of jurisdiction under the "slip rule" that was there in issue said (at [182]) that: "the judge who made the orders is overwhelmingly the preferable person to make the corrections". It is therefore appropriate that I clarify in this judgment (as I have done) what I intended by the costs order in October 2019; and, in light of that and the circumstances set out above, I see no reason to put the parties to further expense in what has already been an unduly lengthy (and no doubt very expensive) set of proceedings to date. 14. Accordingly, I make the following orders: 1. Proceeding 2016/271090 in this court be transferred to the Supreme Court of the Australian Capital Territory pursuant to section 5(2) and/or section 5(6) of the Jurisdiction of Courts (Cross-Vesting) act 1987 (NSW). 2. Order that the costs that were reserved by order 5 of the orders made on 19 October 2018 (see Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567) be borne as follows: that the plaintiffs pay the costs of that part of the amended notice of motion (filed 4 July 2018) which was heard in September 2018 and determined by me in October 2018. 3. Note, for the avoidance of doubt, that order 6 of the orders made on 11 September 2019 (see Findex Group Ltd v iiNet Ltd) [2019] NSWSC 1198 did not (and does not) incorporate costs in respect of that portion of the amended notice of motion, filed 4 July 2018, that was dealt with in Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567. 4. Otherwise make no further orders in relation to the costs of the proceeding as a whole on the basis that those are to be dealt with by the Supreme Court of the ACT when the matter is transferred to that Court. ********** 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: 02 April 2020