Federal Court of Australia

Archbishop Makarios Griniezakis v Morelas [2024] FCA 100

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s application for a transfer of proceedings is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, Archbishop Makarios Griniezakis, brings claims of defamation against the respondent, Mr Morelas. Four articles are sued on, each of which were published on the website Greek Flash News, located at the URL address https://greekflash.com (Greek Flash Website), between August and September 2021. The substantive proceeding was commenced in the New South Wales District Registry of this Court on 9 March 2022.

2    Though the Archdiocese is nationwide, it is headquartered in Sydney where the applicant resides. The respondent lives in Melbourne. At the time of the hearing of this application, being 30 October 2023, the applicant and respondent had each retained legal representatives based in Sydney and Melbourne, respectively. However, I note that on 6 February 2024, the respondent’s solicitors filed a notice of ceasing to act. The respondent has since been unrepresented.

3    By letter dated 12 May 2023, the respondent wrote to the applicant’s solicitors, seeking the applicant’s consent to have the proceeding transferred to the Victorian District Registry of this Court. The applicant did not consent to the transfer.

4    The respondent now makes an application pursuant to r 2.02 of the Federal Court Rules 2011 (Cth) (FCR), seeking an order under s 48 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) for the transfer of the proceeding to the Victorian District Registry. The application is opposed by the applicant.

5    For the reasons which follow, I dismiss the application.

Legal principles

6    Section 48 of the FCA Act empowers the Court to make an order for the transfer of proceedings to another place:

48  Change of venue

(1)     The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.

…

7    The principles applicable to an application for a transfer were expressed by the Full Court in National Mutual Holdings Pty Ltd v The Sentry Corporation [1988] FCA 396; (1988) 19 FCR 155 (Sentry) at 162:

The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, be defined more closely or precisely.

8    Subsequent cases have indicated various matters of which may bear on the determination of whether there is sound reason to order the transfer of the proceedings. As noted by White J in Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2014] FCA 1010 (Australian Egg Corporation) at [6]:

Some matters can be taken to be settled. These include:

(a)        there is no onus of proof in the strict sense to be discharged by the party seeking to have the proceedings continued elsewhere: Sentry at 162;

(b)        the national character of the Court, including its capacity to put in place flexible arrangements for the taking of evidence and the receipt of submissions, is pertinent: Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239 at [16], [20]; Mortimer v Opes Prime Stockbroking Ltd (Administrators Appointed) (in liq) [2009] FCA 227 at [15]. As French J observed in Lamb v Hogs Breath Company Pty Ltd (No 1) [2007] FCA 49 at [9]:

So far as the interlocutory processes are concerned, unless some unusual circumstance occurs, it matters little whether the proceeding is in the Perth or Brisbane Registry because in either event the party not in the home Registry will be able to participate by way of video-link or even teleconference. The Court also has the facility for the electronic filing of submissions and the like and the conduct of litigation, in part, through that.

(c)        The place of residence of the parties and their witnesses, the expense to the parties, the place where the events giving rise to the applicant’s cause of action, and the convenience of the Court itself are relevant matters: Sentry at 162;

(d)        The balance of convenience is a very relevant, but not decisive, consideration: Sentry at 162.

(e)        Any difference in the rights of the parties under the relevant law of different States or Territories, to the extent that these can be identified and assessed at the time the Court considers the application, may be material: Sentry at 163;

(f)        Ultimately, the discretion is to be exercised “having regard to considerations of sound case management, the national character of the court and practical considerations including the convenience of the parties”: Virgin Mobile at [16].

9    These principles have been cited and applied: see, for example, Russell v S3@Raw Pty Ltd (Proper Place) [2023] FCA 1012 (Russell) at [20]; Oberix Group Pty Ltd v Atkinson [2021] FCA 1259 at [15].

Submissions and Evidence

10    The respondent read the affidavits of Argyrios Morelas affirmed 16 May 2023 (including accompanying Annexure A) and 26 October 2023 in support of its application.

11    The affidavits outline that the respondent has limited funds and resources to defend the proceeding, and that his medical condition (rheumatoid arthritis) makes travel more onerous. The respondent has been receiving the Single Aged Pension since about October 2018 and currently receives a total amount of $1,200 per fortnight, including rental assistance and carer’s support. The respondent stated he owns no major assets apart from real estate in Greece worth approximately 20,000 to 30,000 euros and is therefore unable to fund the travel, accommodation, or other costs involved in a hearing held at the New South Wales District Registry of this Court.

12    It was submitted that there is a clear disparity in the financial resources of the respondent when compared to the applicant. The respondent contended that hearing the proceeding in New South Wales would impose undue burden on the respondent because he would incur substantial costs beyond his financial means, whereas the applicant is a person of significant means, holds a national position as the head of the Greek Orthodox Church in Australia, has an office in Melbourne and presumably would have no difficulty in sourcing accommodation for himself and paying for the accommodation of his legal team for the duration of the hearing. To that end, the respondent noted that the applicant had been on notice of his intention to make this application since 12 May 2023, and that there has been no suggestion that a transfer will have an adverse effect on the applicant, apart from imposing the need for his Sydney-based legal team to travel to Melbourne; which the respondent submitted should be regarded as a “neutral factor”: citing Truong Giang Corporation v Tung Mau Quach [2014] FCA 447 (Truong) at [11].

13    The respondent submitted that the Court has the unfettered power to order a change of venue, and that such power is to be “exercised flexibly having regard to the circumstances of the particular case”: Sentry at 162. The respondent made the submission that the cause of action did not arise in New South Wales but relates to a series of articles posted on the Greek Flash Website and published nationwide. It was therefore contended that the Melbourne facilities of this Court are adequate for the hearing of this proceeding.

14    The respondent also noted that the applicant has had the benefit of having the proceeding heard to date in Sydney, with the respondent participating in interlocutory and case management proceedings by way of videoconference. The respondent will be the main witness at trial, and he anticipates calling only three other witnesses who each reside in regional Victoria, Greece and Sydney. There is a possibility of a fourth witness who also resides in Sydney, but the respondent explained that that witness’s attendance would likely need to be procured by way of subpoena and may be resisted. The respondent submitted that if the proceeding was transferred to the Victorian Registry, then all Sydney-based witnesses could be accommodated by videoconference link. It was contended that the balance of convenience therefore favours having the trial heard in Melbourne. The respondent also submitted a transfer at this stage would result in relatively little disruption to the efficient management of the proceeding, noting that orders setting down a date for trial are yet to be made.

15    The applicant resisted the transfer of the proceeding to the Victorian Registry and relied on the affidavit of Ulysses Coustas affirmed 27 October 2023.

16    The applicant accepted that his financial resources are much greater than that of the respondent but submitted that whether the proceeding should be transferred is a question of convenience. Although the Archdiocese is nationwide, it is headquartered in Sydney; and the applicant intends to call at least six witnesses who live in Sydney. Though the respondent lives in Melbourne, he intends to call witnesses who live in Greece (to whom hearing the proceeding in either Melbourne or Sydney makes no difference), regional Victoria and Sydney. The applicant submitted that the cost of transferring the proceeding to the Victorian Registry – which would require the applicant, his lawyers and more than half a dozen witnesses to travel to Melbourne, leading to additional costs likely exceeding $50,000 – is significantly greater than the cost of keeping the proceeding in New South Wales, which would require only the respondent, his lawyers (who have since ceased to act) and two witnesses (who reside in Greece and regional Victoria) to travel to Sydney. It was also noted that the respondent would have no resources to pay for his Sydney-based witnesses to attend the trial in Melbourne (if the application was granted) and that it is an unsatisfactory proposition for the applicant to be put to the cost of arranging the respondent’s witnesses to attend the hearing.

17    The applicant did not consent to the suggestion that, if the application was granted, the respondent would give evidence in person in Melbourne, while the applicant’s witnesses could give evidence remotely via videoconference link, noting that this may lead to an attack on their credit.

18    The applicant submitted that while the publications were nationwide, the choice of law rule in s 11(2) of the Defamation Act 2005 (NSW) (Defamation Act) states that “the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied…to determine each cause of action”. In the present case, that place is New South Wales, where the applicant resides. Moreover, the substantive proceeding involves one matter to which there is a defence of justification, being the alleged cover-up by the priest of the sexual assault in Gosford, making it a New South Wales event.

Consideration

19    This proceeding was commenced in the New South Wales Registry of this Court on 9 March 2022. The choice of location by the applicant is neither unreasonable nor capricious and the respondent does not suggest otherwise. Indeed, given the Archdiocese is headquartered in Sydney, and the applicant resides in Sydney, it is entirely expected that if proceedings were launched, it would be in this State.

20    There have been significant technological advancements in this Court, particularly with respect to the ability to conduct hearings remotely. Consistent with these developments, the respondent has appeared via videoconference at the interlocutory and case management hearings to date. Although this application was first flagged by the respondent in a case management hearing on 24 May 2023 (after it had been raised with the applicant’s solicitors on 12 May 2023), it was appropriate to defer any consideration of it until the Court had material as to what evidence is intended to be called in the hearing, particularly given that the Court had been accommodating (and continues to do so) the respondent’s remote appearance.

21    Despite orders being in place for the filing of evidence, they had not been complied with at the time of the hearing of this application. The application proceeded on the basis of what each party said was the position as to their expected witnesses and estimate of hearing time. The parties’ current estimate of the proceeding is seven days. At the conclusion of the submissions the parties were informed they would be notified at the next case management hearing of the decision of this application. Neither party has contacted chambers to suggest the circumstances have relevantly changed from those at the time submissions were made. I note that the affidavits of evidence filed since the application was heard bear out the location of witnesses as foreshadowed during the hearing. I note also that a notice of ceasing to act has been filed and the respondent is now unrepresented. I proceed on that basis.

22    It is an inevitable consequence of the fact that the parties are not in the same State that there will be additional costs and inconveniences to the party that is required to conduct their case interstate. Though it is undisputed that the applicant’s financial resources are much greater than that of the respondent, I consider the balance of convenience to nevertheless favour the proceeding being heard in New South Wales.

23    I consider the location of the witnesses who will, or who are likely to give evidence in the trial to be an important consideration: see Australian Egg Corporation at [15]. All the witnesses proposed to be called by the applicant reside in Sydney, as well as two of the witnesses proposed to be called by the respondent. The remaining two witnesses to be called by the respondent reside in Greece and regional Victoria and will therefore need to travel regardless of whether the hearing is held in Sydney or Melbourne (notwithstanding one might reasonably expect the witness based in regional Victoria to consider Melbourne a more convenient location for trial than Sydney). In fact, the only person who is in Melbourne is the respondent. That is, the application would have everyone in the case travelling to Melbourne for the respondent. Although the respondent contends that all the witnesses can give evidence via videoconference facilities, the applicant has indicated that it would oppose that course. The respondent did not address who would fund the travel and associated expenses of these witnesses if they were required to travel. It is unnecessary to decide that at this stage, but it reflects the extent of the impact of relocation of the proceeding. I note that although the respondent has not made an application, the same argument could be advanced in favour of keeping the venue as New South Wales; the respondent and any witnesses not based in Sydney equally could apply for leave to give evidence remotely.

24    The location of the parties’ legal representatives is generally regarded as a matter of limited significance on applications of the present kind: see, Russell at [18] and Australian Egg Corporation at [23] citing BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd (No 6) [2002] FCA 807 at [22]-[25]; Australian Competition & Consumer Commission v Virgin Mobile Australia Pty Ltd [2002] FCA 1239 (Virgin Mobile) at [18]; Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2003] FCA 430 at [8] and Wepar Nominees Pty Ltd v Schofield [2013] FCA 920 at [12]. That is especially so now that the respondent is unrepresented. In any event, this is not a case where the application could be put on the basis that the matter be transferred for the convenience of counsel briefed (although the respondent did refer to the costs of his lawyers travelling to Sydney). Notwithstanding that he is currently unrepresented, the respondent chose to retain lawyers in Melbourne knowing that the case had been filed in the New South Wales Registry, and therefore in the ordinary event, was likely to be heard in Sydney. The applicant’s lawyers are based in Sydney, as to be expected given the presence of the applicant in Sydney and the matter being properly filed in this registry.

25    Generally, the respondent’s submission downplayed the costs that would be imposed on the applicant if the proceeding was to be relocated in circumstances where a transfer of the proceeding to the Victorian Registry of this Court would necessarily impose an additional burden on the applicant in respect to the hearing. I agree with the applicant’s submission that the cost of transferring the proceeding to the Victorian Registry is significantly greater than the cost of keeping the proceeding in New South Wales.

26    Finally, the respondent’s reliance on Truong is misplaced. In the exercise of a discretion of this kind, detailed analysis of prior decisions which turn on their own facts is generally unrewarding: see Virgin Mobile at [16], and I do not accept the respondent’s submission that the circumstances in Truong are not dissimilar to the present case. Though the respondent in Truong also had limited funds available to defend the litigation, that was but one factor which Davies J considered to weigh in favour of a transfer of venue. The applicant in Truong was a corporation registered in California and had no connection to Victoria (where the proceeding was commenced) apart from its Melbourne-based lawyers: Truong at [5] and [8]. By contrast, the Archdiocese is headquartered in Sydney, where the applicant resides. Moreover, the cause of action in Truong arose in New South Wales (not Victoria): Truong [9], and none of the witnesses proposed to be called by the applicant in Truong were based in Melbourne: Truong at [10]. Here, both parties intend to call witnesses who reside in Sydney, it was not unreasonable, but rather to be expected that proceedings would be commenced in Sydney, and the choice of law rule in s 11(2) of the Defamation Act makes it appropriate that the matter be heard in New South Wales.

27    In all the circumstances, I am not persuaded that I should order the transfer of the proceeding to the Victorian District Registry.

Conclusion

28    The respondent’s application for a transfer of proceeding from the New South Wales District Registry to the Victorian District Registry of this Court is dismissed.

Associate:

Dated:    20 February 2024