Kesselbacher v Light [1999] NSWSC 24 (8 February 1999)

Last Updated: 18 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Kesselbacher v Light [1999] NSWSC 24

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 5323/97

HEARING DATE{S): 08/02/98

JUDGDMENT DATE: 08/02/1999

PARTIES:

Hannelore Margarete Kesselbacher (P)

Karsten Light

JUDGMENT OF: Master McLaughlin

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Ms. J. Manuell (P)

Mr. K. Light (in person)

SOLICITORS:

Andrew Nicholas Sochaki (P)

Defendant in Person

CATCHWORDS:

De Facto Relationships Act 1984

ACTS CITED:

De Facto Relationships Act 1984

DECISION:

See Paragraph 18

JUDGMENT:

- 6 -

1 MASTER: There is presently before me an application made by way of Notice of Motion filed by the defendant, Karsten Light, on 11 December 1998. By that Notice of Motion the defendant (who has acted for himself in respect to the filing of that and associated documents and who has appeared in person before me at today's hearing), seeks an order that the proceedings be transferred to the District Court of New South Wales sitting in Sydney or, in the alternative, that the proceedings be transferred to the District Court of New South Wales sitting at Lismore.

2 The proceedings were brought by the plaintiff, Hannelore Margarete Kesselbacher in the Local Court at Lismore. They were subsequently transferred to the Local Court at Mullumbimby. Those proceedings seek orders for relief under the De Facto Relationships Act 1984.

3 On 11 December 1997 the Local Court at Mullumbimby ordered that the proceedings be transferred to the Supreme Court. The matter has been mentioned before the Registrar on various occasions since that date.

4 On 26 October 1998 the Registrar stood the matter into the Master's List. It presently remains in the Master's List and in due course should come up for call-over in about May or June of this year. If so, it is likely that it would be heard two months later, that is, in about July or August of this year.

5 The basis upon which the defendant seeks that the proceedings be transferred to the District Court at Lismore is that both parties reside at Ocean Shores, which falls within the area with which the District Court sitting at Lismore normally deals, and the property which is the subject of the substantive proceedings is also located in that area.

6 I would here interpolate that it would appear that each of the plaintiff and the defendant currently resides in that subject property, one party residing in the upper section thereof and the other party residing in the lower section there. It also would appear that there are practical problems associated with the fact that the two parties reside in the subject property. Despite there not having been, as I have been informed, any contact at the present time, there have apparently in the past been incidents which have given rise to apprehended violence orders being sought --- and possibly indeed having been made --- at the instance of each of the two parties.

7 Further, it would appear that most, if not all, of the witnesses who will be giving evidence in the proceeding reside in the Lismore area.

8 There appears to be no dispute between the parties in relation to the value of the subject property, or that the nature of any order which might be made under the De Facto Relationships Act falls within the monetary jurisdiction of the District Court of New South Wales.

9 There has been placed before me in the present application an affidavit by Andrew Nicholas Sochacki sworn 5 February 1999. He is the solicitor for the plaintiff. Mr Sochacki, who has been a legal practitioner for some twenty years, says in his affidavit that in his experience the matter would be heard more quickly in the Supreme Court rather than in the District Court at Lismore. Further, that he has made enquiries of the Registry of the District Court in Lismore and has been advised that the matter will be delayed for a further twelve months should it be transferred to that court. He also said that he had experience of matters being transferred from one court to another and that, in his opinion, if the matter is transferred to the District Court at Sydney, there would be what he described as unnecessary delay.

10 It is desirable for all parties that the matter should be brought on for hearing as soon as possible.

11 The plaintiff wishes the matter to remain in the Supreme Court and opposes an application that it be transferred to the District Court, be it the District Court sitting at Lismore or the District Court sitting at Sydney.

12 The evidence of Mr Sochacki, that if the matter is transferred to the District court at Lismore, it will not come on for hearing for twelve months persuades me that I should not transfer the proceedings to Lismore, although I do recognise that all the witnesses reside, and the subject property is located, in the Lismore area.

13 As to the proposal that the proceedings be transferred to the District Court in Sydney, there is no evidence which assists me one way or the other as to whether that transfer will result in the matter coming on for hearing sooner than it would come on for hearing if it remained in the Supreme Court.

14 According to what I have been told by Ms Manuell of Counsel, for the plaintiff, speaking from the Bar table, there would appear to be no very great advantage to the parties concerning costs between having the proceedings heard in the Supreme Court and having them heard in the District Court at Sydney.

15 In all the circumstances, I am not persuaded that I should make an order transferring the hearing from the Supreme Court to the District Court either at Lismore or in Sydney.

16 Accordingly, I propose to dismiss the present application.

17 (submissions as to costs)

18 MASTER: I make the following orders:

1. I order that the Notice of Motion filed by the defendant on 11 December 1998 be dismissed.

2. I order that the costs of the aforesaid Notice of Motion be costs in the proceedings.

I certify that this and the preceding

pages are a true copy of the reasons for

judgment of Master McLaughlin

Dated: 8 February 1999

Associate:

Mark A. Provera.

LAST UPDATED: 18/02/1999