Robert William Waterhouse: William Stanly Waterhouse; Malcolm Waters v Australian Broadcasting Corporation [1989] ACTSC 21 (3 May 1989)

SUPREME COURT OF THE ACT

ROBERT WILLIAM WATERHOUSE: WILLIAM STANLY WATERHOUSE; MALCOLM WATERS
v. AUSTRALIAN BROADCASTING CORPORATION
S.C. Nos. 1877, 1878, 1897 and 2006 of 1986
Private International Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Private International Law - Cross-vesting legislation - Proceedings commenced in the Australian Capital Territory in respect of defamatory material allegedly published simultaneously in all States and Territories of the Commonwealth - Forum shopping - Applications to transfer proceedings to Supreme Court of New South Wales - Incidents giving rise to publication allegedly occurring generally in New South Wales - Substantially more costly and inconvenient for defendant to defend matters in Supreme Court of the Australian Capital Territory - Plaintiffs wishing to have their actions tried by judge alone - Possibility that exemplary damages not able to be claimed in New South Wales might not therefore be able to be claimed in other jurisdictions - Principles applicable under Jurisdiction of Courts (Cross-vesting) Act 1987 (Commonwealth) and related legislation.

Williams v. Beesley (1973) 3 All ER 144

Bourke & Ors. v. State Bank of New South Wales (1989) ATPR 40-924

Bankinvest A.G. v. Seabrook & Ors. NSW Court of Appeal, 30 September 1988, (unreported)

Oceanic Sun Line Special Shipping Co Inc v. Fay [1988] HCA 32; (1988) 62 ALJR 389

Maritime Insurance Co Ltd v. Geelong Harbor Trust Commissioners (1908) 6 CLR 196

Logan v. Bank of Scotland (No. 2) (1906) 1 KB 141

Egbert v. Short (1907) 2 Ch 205

Spiliada Maritime Corporation v. Cansulex Ltd (1987) AC 460

In re Norton's Settlement; Norton v. Norton (1908) 1 Ch 471

Pederson v. Young [1964] HCA 28; (1964) 110 CLR 162

Maple v. David Syme & Co Ltd (1975) 1 NSWLR 97

Australian Consolidated Press Ltd v. Uren [1967] HCA 21; (1969) 1 AC 590

Breavington v. Godleman [1988] HCA 40; (1988) 62 ALJR 447

Koop v. Bebb [1951] HCA 77; (1951) 84 CLR 629

Anderson v. Eric Anderson Radio & T.V. Pty Ltd [1965] HCA 61; (1965) 114 CLR 20

Robinson v. Shirley [1982] HCA 1; (1981-1982) 149 CLR 132

Cawley v. Australian Consolidated Press Ltd (1985) 1 NSWLR 225

Carleton v. Freedom Publishing Co Pty Ltd (1982) 45 ACTR 1

Phillips v. Eyre (1870) LR 6 QB 1

HEARING

CANBERRA
3:5:1989

Counsel for the Applicant/Defendant Mr T.K. Tobin QC

with Mr M.G. Sexton

Solicitors for the Applicant/Defendant Messrs Colquhoun Murphy
Canberra as agents for
Mr Bruce Donald, Sydney

Counsel for the Respondent/Plaintiff Mr C.A. Evatt

Solicitors for the Respondent/Plaintiff Messrs Macphillamy Cummins
& Gibson, Canberra, as agents
for P.J. Pollack & Co. Sydney

Counsel for the Respondent/Plaintiff Mr J.A. Timbs

Solicitors for the Respondent/Plaintif Messrs Snedden Hall & Gallop,
Canberra
As agents for Glasheen & Quilty,

ORDER

The abovenamed proceedings be transferred to the Supreme Court of New South Wales.

The costs of the proceedings excluding the costs of this motion and costs in respect of which orders have already been made are to be costs in the proceedings in the Supreme Court of New South Wales.

The plaintiff pay the costs of the motion herein dated 3 November 1988.

DECISION

In each of these matters the defendant has applied for an order that the matter be transferred to and determined by the Supreme Court of New South Wales pursuant to s.5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Commonwealth) (the Act). Section 5(2) of the Act is as follows:-

"Where -
(a) a proceeding (in this sub-section
referred to as the 'relevant
proceeding') is pending in the Supreme
Court of a State or Territory (in this
sub-section referred to as the 'first
court'); and
(b) it appears to the first court that -
(i) 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;
(paragraph (i))
(ii) having regard to -
(A)whether, in the opinion of the
first court, apart from this
Act and any law of a State
relating to cross-vesting of
jurisdiction, the relevant
proceeding or a substantial
part of the relevant proceeding
would have been incapable of
being instituted in the first
court and capable of being
instituted in the Supreme Court
of another State or Territory;
(B)the extent to which, in the
opinion of the first 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 State
or Territory referred to in
sub-sub-paragraph (A) and not
within the jurisdiction of the
first court apart from this Act
and any law of a State relating
to cross-vesting of
jurisdiction; and
(C)the interests of justice,
it is more appropriate that the
relevant proceeding be determined
by that other Supreme Court;
(paragraph (ii)) or
(iii) it is otherwise in the interests of
justice that the relevant
proceeding be determined by the
Supreme Court of another State or
Territory, (paragraph (iii))
the first court shall transfer the relevant
proceeding to that other Supreme Court."

Section 11(1) of the Act reads:-

"Where it appears to a court that the court
will, or will be likely to, in determining a
matter for determination in a proceeding, be
exercising jurisdiction conferred by this Act
or by a law of a State relating to
cross-vesting of jurisdiction:
(a) subject to paragraphs (b) and (c), the
court shall, in determining that matter,
apply the law in force in the State or
Territory in which the court is sitting
(including choice of law rules);
(b) subject to paragraph (c), if that matter
is a right of action arising under a
written law of another State or
Territory, the court shall, in
determining that matter, apply the
written and unwritten law of that other
State or Territory; and
(c) the rules of evidence and procedure to
be applied in dealing with that matter
shall be such as the court considers
appropriate in the circumstances, being
rules that are applied in a superior
court in Australia or in an external
Territory."

2. All four actions arise out of the publication by the defendant Corporation on 10 November 1986 of a segment entitled "Horses for Courses" and telecast for general reception on the well-known programme "Four Corners".

3. In an attempt to establish the background of the actions I set out portion of the beginning of the transcript of the segment:-

Speaker: "It's a billion-dollar industry - the
seemingly endless chances for making money,
for losing money and for washing dirty money,
make the track on race-day a mecca. In
Sydney this is so almost to the point of
fanaticism.
David Everybody who is anybody meets at the
Hickey: racetrack. The captains of commerce, the
prominent Sydney businessmen, and the
colourful racing identities, all mix in the
Members' enclosure of Royal Randwick with the
politicians, with the social butterflies of
the Sunday social pages, with the spivs and
touts and conmen and the crooks and Flash
Harrys.
Tony So much is racing part of the Sydney ethos
Jones: that the biggest names become legendary. But
two years ago came news that left the racing
community blinking in disbelief.
The bungled ring-in, a poorly choreographed
farce, put the name 'Fine Cotton' alongside
'Phar Lap' in racing's Hall of Fame. Stung
by such diabolical publicity, the racing
industry struck back. After an enquiry,
Australia's most famous bookmaker, big Bill
Waterhouse and Robbie Waterhouse, his son and
heir-apparent, were both banned from the
world's racecourses.
After four generations of bookmakers, Bill
Waterhouse's racing dynasty had fallen from
grace. In racing mad Sydney the whole affair
assumed momentous importance.
David In Sydney, you really haven't made it in the
Hickey: right circles, unless you are one of these
people who's well-known about the racetrack.
The racetrack is Sydney, and that's why Bill
Waterhouse has always encapsulated the very
paradox of Sydney. He is establishment and
yet he's what you would call the colourful
money.
Tony This city, with its glittering harbour and
Jones: its offer of glittering prizes is no stranger
to colourful money. Sydney has in fact
fostered the Waterhouse dynasty. They came
with the first fleet and stayed.
The family home, right on the harbour at
Kirribilli, offers devastating views of the
country's most famous cultural monuments.
The Waterhouse children went to the right
schools.
And Big Bill went to the right university."

4. I have set out that passage to show how largely the city of Sydney looms in and sets the background for the published segment. The publication was clearly about men who were involved in the Sydney scene although the plaintiff Waters was described in the programme as a bookmaker from Wollongong. The plaintiff William Allen complains of a portion of the programme which described him as "the then Deputy Police Commissioner". It is clear that he was being described as the New South Wales Deputy Police Commissioner.

5. In support of the defendant's applications Bruce Donald, the solicitor acting for the defendant in each matter, who is also described in a letter furnishing particulars addressed to the solicitors for Mr Waters as the "General Manager, Legal and Administrative Services" of the defendant, made an affidavit on 2 November 1988 and was cross-examined on it. The solicitor for each plaintiff swore an answering affidavit.

6. In relation to each of the matters, I summarise relevant aspects as they appear from the affidavits filed, cross-examination on those affidavits and a letter dated 28 November 1988 sent on behalf of Mr Donald and a schedule, Exhibit A.
SC.1878 of 1986 - William Stanley Waterhouse v. The Australian Broadcasting Corporation

7. The plaintiff resides at Kirribilli and carries on business from premises at Pacific Highway, North Sydney.

8. Mr Donald estimated that the defendant would need to call 37 witnesses to give oral evidence. Of these all but 9 live in the Sydney metropolitan area or at an address from which they could attend at a hearing in Sydney on a daily basis without needing provision for overnight accommodation. Of the 9, 8 live in Victoria and 1 in the Monaro District. Obviously they would require overnight accommodation should the matter proceed in Sydney and their presence in that city be required on two or more days.

9. Mr Donald estimated further that at least 15 persons or institutions would be required to produce documents to the Court. The only such persons or institutions operating outside the Sydney metropolitan area are the Victorian County Court and the Victorian Court of Petty Sessions. He assumed that witnesses who might give evidence about the plaintiff's reputation would be likely to live in New South Wales and that evidence relating to that reputation would be likely to relate to events which had occurred in that State. He pointed out that, as was the case in the four actions, all counsel briefed in the matter for both sides conduct their practices in the City of Sydney, and that the plaintiff's principal solicitors carry on business in Sydney and act through Canberra agents. He also deposed that the proper management of the proceedings would require not only his presence but that of his principal assistants from his office. He himself and those assistants all live in the Sydney metropolitan area.

10. Mr Donald estimated that the matter would occupy between 5 to 8 weeks of court hearings if heard together with the three related actions.

11. On that basis Mr Donald assessed at $63,305.00 (the total should have been $64,785.00) the costs for accommodation, travel expenses, meal expenses, communication expenses, pre-trial costs of instructing Canberra agents and incidental expenses. In making that assessment he assumed that the hearing would last 6 weeks, that senior and junior counsel would be briefed and that witnesses were likely to fly to Canberra at economy rates, to require taxis for transport from airport to hotel and from hotel to court and accommodation for an average of one night each. He calculated the additional costs of maintaining an office in Canberra with secretarial assistance, facsimile costs, photocopying costs and telephone expenses at $1,792.00 per week.

12. Without attempting to pre-empt any view which might be taken by the judge hearing the case or cases, it seems to me unlikely that the plaintiff's case will be heard jointly with those of the other three persons who have sued. Although all the actions arise out of the same telecast, Mr Waters' action has no other link with those brought by Mr William Waterhouse and Mr Allen. Although Mr Robert Waterhouse's action is substantially in respect of material of which Mr William Waterhouse also complains, significant portions of it are not. Mr Water's action is in respect of only one part, although a significant part, of the material of which Mr Robert Waterhouse complains. Mr Allen's action is in respect of only one part, although again a significant part, of the material of which Mr William Waterhouse complains.

13. I think it likely that the plaintiff's case will be heard alone and will probably take 4 to 5 weeks. I proceed on the basis that it will take 4. On that basis the defendant's additional costs of a hearing in Canberra as opposed to one in Sydney would, on Mr Donald's figures, be $50,358. It should be noted, however, that that figure must be reduced by what I estimate at approximately $1,500 to take account of the expenses payable in respect of the eight Melbourne witnesses expected to be called, no matter in which of the two cities the plaintiff's action is heard.

14. Mr Donald also gave evidence that under the present listing practice in the Supreme Court of New South Wales an action such as the plaintiff's would be listed before a judge about a month after all interlocutory matters had been dealt with and a hearing date set for no later than 6 months after that mention.

15. In cross-examination Mr Donald was asked the following question:-

"The grounds of your application seem to be,
as set out in your affidavit and your
evidence in the box, based on convenience and
expense, would you agree with that?"

He replied:-

"No. I think they are based on the place in
which the action truly arises, all of the
ingredients of the action truly arise, and
the proper analysis and the leading of
evidence in relation to all of those aspects
of the case."

He agreed that it would be more economical and more convenient for the defendant to conduct the litigation in Sydney.

16. Mr Philip John Pollack, solicitor for the plaintiff, swore an affidavit on 30 November 1988 in which he deposed that the plaintiff had instructed him to bring his action in the Supreme Court of the Australian Capital Territory for a number of reasons. The first was the Australia-wide publication of the material complained of. I assume for the purposes of this application that to have been proved. The second was that because the Australian Capital Territory is regarded nationally as representative of the whole of Australia the Supreme Court of the Territory would be best fitted to determine the matter. I do not accept that that reason has any validity. The third was that the plaintiff had made every effort to prevent publication of the matter complained of and to draw to the attention of the defendant what were described as its "false, defamatory and injurious effects". This consideration may be linked with the fourth reason, that the plaintiff seeks punitive damages as well as general compensatory damages and aggravated compensatory damages. I will deal with it and the third reason more fully later. The fifth reason related to proceedings for criminal defamation brought against the producer of the segment and the journalist who presented it. The Director of Public Prosecutions for New South Wales eventually determined that no indictment should be presented against those two persons. He gave as one of his reasons that the plaintiff had commenced a civil action against the defendant arising out of the telecast and it was open to him to seek both general and punitive damages from that action. I do not immediately see how this could have affected the choice of forum but will give further consideration to it.

17. The sixth reason was that s.46(3)(a) of the Defamation Act 1974 (New South Wales) forbids a claim for punitive (sic) damages for defamation in that State. Again it is more convenient to deal with that reason at a later stage.

18. The seventh reason was that the plaintiff wished his action to be tried by a judge sitting alone and not by a jury. The main reason given for that instruction was said to be the estimated length and cost of the action should it be tried by a jury. Mr Pollack estimated that if the matter were tried by a jury it would take 8 to 10 weeks or more whereas it would probably not exceed 3 to 4 weeks if tried by a judge alone.

19. In support of that proposition Mr Pollack referred to the judgment of Lord Diplock in Williams v. Beesley (1973) 3 All ER 144 where at p 147, in a speech in which all the other Law Lords concurred, he said:-

"If, ..., all rational considerations point
to the conclusion that trial by judge alone
would involve a shorter and less expensive
hearing and would be more likely to achieve a
just result than trial by jury, it would be
the height of injustice to the defendant to
deprive him of his right to have his case
tried by the appropriate method merely
because of the mistaken belief of the
plaintiff that judges as a class are likely
to be biased against him or in favour of his
opponent."

20. I have quoted a little more of what Lord Diplock said than did Mr Pollack. Mr Pollack submitted that it is common knowledge among lawyers that a trial with a jury takes longer than a trial without. So far as I know, there is in Australia no statistical basis for such an assertion. No doubt it may be argued that in a trial with a jury arguments as to admissibility of evidence may engage more of the Court's time, that addresses to the jury are generally likely to take longer than addresses to a judge and that directions to the jury may also take some additional time. On the other hand it may be argued that counsel experienced in jury trials are likely to address more briefly in order to hold the jury's attention. Assuming, however, that a jury trial may take longer, it would be difficult to estimate how much longer it might take in any given case. I am unable on the material before me to reach any conclusion that on the balance of probabilities trial by judge alone would take so much less time than trial with a jury as to offset in any appreciable measure the additional costs of trial of the action in Canberra. Mr Pollack referred to s.88 of the Supreme Court Act 1970 (New South Wales) which provides that proceedings on a claim in respect of defamation where there are issues of fact shall be tried with a jury, although under s.89 of that Act the court may order that all or any issues of fact be tried without a jury where all parties consent to the order. There was no suggestion that the defendant might consent to such a course even though what may be described as an invitation to do so was extended to it.

21. The eighth reason given by Mr Pollack was that witnesses whom it was proposed to call on behalf of the plaintiff come from all over Australia including the Australian Capital Territory and it was submitted that the Australian Capital Territory was the appropriate venue to suit their convenience. Mr Pollack annexed to his affidavit a list setting out the names and addresses of a number of witnesses and stated that the plaintiff intended to call some if not all of them. Twentyone of the 31 witnesses listed have Australian Capital Territory addresses while 3 are shown as living in nearby Queanbeyan and Bungendore. Three come from south western New South Wales, 2 from Perth, 1 from Melbourne and 1 from Adelaide. Surprisingly, the name of no witness said to come from Sydney appears on the list. I am not satisfied that the convenience of those witnesses who may or may not be called is an appropriate matter to take into account.

22. The ninth reason given by Mr Pollack was that the defendant in attempting to change the venue to Sydney was trying to get an advantage not available to it in the Australian Capital Territory or elsewhere in Australia. This arose, he said, from the unique nature of the Defamation Act 1974 (New South Wales). He said that the advantages available to a defendant were:-

(a) the availability of the defence of contextual
imputations under s.16 of the Defamation Act; and
(b) the defence of qualified privilege pursuant to
s.22 (sic) of that Act (I think Mr Pollack meant
s.20(2)) applicable to multiple publications such
as television programmes.

This matter may be dealt with more appropriately later.
SC.1877 of 1986 - Robert William Waterhouse v. The Australian Broadcasting Corporation

23. The plaintiff resides in the Sydney suburb of Clifton Gardens and carries on business from premises at Pacific Highway, North Sydney.

24. Mr Donald estimated that the defendant would need to call 17 witnesses to give oral evidence. He said that the Australian Jockey Club, the Greyhound Racing Control Board and other institutions hold records which are likely to be subpoenaed or requested for the purposes of the proceedings and that those records were held in the Sydney metropolitan area. He assumed again that witnesses who might give evidence about the plaintiff's reputation would be likely to live principally in New South Wales and that evidence relating to that reputation would be likely to relate to events which had occurred in that State.

25. During the course of the hearing it became evident that the principal reason for the plaintiff's and Mr William Waterhouse's choice of this Court as the forum for their actions was their belief that a jury was likely to be prejudiced against bookmakers and that they, as bookmakers, would therefore be unlikely to have their actions fairly tried. This belief may have affected the claim of Messrs Allen and Waters. I assume, without deciding, this to have been so and will deal later with the considerations to which that belief might give rise.

26. Mr Donald estimated that the need for witnesses, counsel, solicitors and documents to be transported to and accommodated at commercial rates in Canberra for proceedings before this Court and the need for both parties also to retain solicitors in this jurisdiction would at least double the cost of the proceedings. He said that of the 17 witnesses the defendant proposed to call in the matter, he proposed to call 13 in Mr William Waterhouse's action.

27. Again I assume that it is unlikely that this action would be heard together with the action brought by Mr William Waterhouse.

28. Although it is not easy to calculate the length of the trial of this action, I assume for the purpose of these reasons that it would be likely to take at least two weeks and that the additional costs to the defendant if the matter were heard in Canberra would be of the order of $25,179.00.

29. Mr Pollack, in his affidavit of 30 November 1988, relied on the matters set out in his affidavit of 30 November 1988 filed in Mr William Waterhouse's action and said further that Mr Robert Waterhouse proposed "to call witnesses including those set out in Annexure 'A'" to that affidavit. He said further that Mr Robert Waterhouse had instructed him to seek punitive damages and required that his action be tried by a judge sitting alone.
SC.2006 of 1986 - William Allen v. Australian Broadcasting Corporation

30. Mr Donald estimated that the trial of this action would take, more likely than not, two weeks. In a letter of 28 November 1988 he said that he proposed to call 6 witnesses all of whom lived in the Sydney metropolitan area and all of whom he proposed to call in the actions brought by the two Messrs Waterhouse. Doing the best I can, I assess the probable length of the trial at one week and assess the additional expense to which the defendant would be put in defending the action in Canberra at $12,590.00.

31. Mr Pollack, in his affidavit of 30 November 1988, relied upon the material set out in his affidavit of 30 November 1988 sworn in Mr William Waterhouse's action and deposed further that Mr Allen had instructed him to seek punitive damages and that he wished his action to be tried by a judge sitting alone. He said that his client proposed to call witnesses including some or all of the 15 listed in Annexure "A" to his affidavit. None of those 15 lives in Sydney or the Australian Capital Territory. Eight live in South Australia, 2 in Victoria, 4 in Queensland and 1 in the Northern Territory. I do not see that the convenience of those witnesses is better served by trial in this Court rather than in the Supreme Court of New South Wales.
SC.1897 of 1986 - Malcolm Waters v. The Australian Broadcasting Corporation

32. In this matter, Mr Donald's affidavit of 2 November 1988 sets out, incorrectly as I find, that the plaintiff resides in Wollongong. I am satisfied he resides at Glenorie, an outer northern suburb of Sydney. Mr Donald estimated that the defendant would need to call 12 witnesses to give oral evidence and estimated that if the matter were heard separately from Mr Robert Waterhouse's action the additional disbursements which the defendant would necessarily incur if the matter were heard in this Court would be approximately $20,000.00. He said that records of the New South Wales Greyhound Racing Control Board and of other persons or institutions which were likely to be subpoenaed or requested for the purposes of the proceedings were held in the Sydney metropolitan area. Otherwise, he deposed generally to the matters to which he had deposed in the affidavit filed in Mr William Waterhouse's action.

33. Mr Quilty, Mr Waters' solicitor, made an affidavit on 30 November 1988. He said that the plaintiff was a bookmaker licensed with the South East Racing Association of New South Wales which was based at Canberra. He conducted his bookmaking business at Kembla Grange. He is a director and actively involved in the activities of a company which has substantial business interests at Central Tilba where it apparently conducts an abattoir, at Wollongong where it conducts three butcher shops, at Corrimal where it conducts a wholesale depot, at Goulburn where it conducts one or possibly more butcher shops and in the Australian Capital Territory where it conducts six butcher shops.

34. Subject to the finalisation of the issues for trial, the plaintiff intended at the date of the affidavit to call 4 witnesses from the Australian Capital Territory, 3 from Gunning, 2 from Queanbeyan, 4 from Goulburn, 2 from Cooma, 1 from each of Harden and Yass and approximately 5 from the Wollongong area.

35. I assess the length of the trial in this matter for the purposes of the defendant's application at 1 to 2 weeks and assess the additional cost which would be occasioned the defendant if the matter were tried in this Court at $19,560.00.
Jurisdiction of Courts (Cross-vesting) Act 1987

36. The preamble to the Act sets out the purpose of the legislative scheme of which the Act forms a part. It also identifies the matters which gave rise to the scheme. It reads:-

"WHEREAS inconvenience and expense have
occasionally been caused to litigants by
jurisdictional limitations in federal, State
and Territory courts, and whereas it is
desirable -
(a) to establish a system of cross-vesting
of jurisdiction between those courts,
without detracting from the existing
jurisdiction of any court;
(b) to structure the system in such a way as
to ensure as far as practicable that
proceedings concerning matters which,
apart from this Act and any law of a
State relating to cross-vesting of
jurisdiction, would be entirely or
substantially within the jurisdiction
(other than any accrued jurisdiction) of
the Federal Court or the Family Court or
the jurisdiction of a Supreme Court of a
State or Territory are instituted and
determined in that court, whilst
providing for the determination by one
court of federal and State matters in
appropriate cases; and
(c) if a proceeding is instituted in a court
that is not the appropriate court, to
provide a system under which the
proceeding will be transferred to the
appropriate court."

37. Sub-paragraph (c) may be of importance in ascertaining the correct interpretation of paragraph (iii) having regard to the interpretation which counsel for Mr Waters sought in his able argument to place upon it. I accept his submissions as applicable to all four actions.

38. He contended that the powers of transfer given by s.5 were conferred to deal with the potential difficulty created by "forum shopping" in Courts given additional jurisdiction as a consequence of the Act. He submitted that the use of the expression "the interests of justice" in paragraph (ii) in conjunction with the phrase "it is otherwise in the interests of justice" appearing in paragraph (iii) meant that the phrase "in the interests of justice" where used secondly should be construed as declaring the common law position that the jurisdiction to transfer a proceeding which had properly invoked the jurisdiction of a court should be exercised only where the court is shown to be a "clearly inappropriate" forum. He submitted that the purpose of s.5 was to prevent cross-vesting of jurisdiction being used as a vehicle for the institution of proceedings in "wholly inappropriate" courts.

39. He conceded that the use of the phrase in paragraph (iii) was apparently unbridled by any other consideration. In its earlier use, he said, the context of the phrase is defined and paragraph (ii) is explicitly directed to the mischief which the Act was designed to address, namely, the prevention of cross-vesting jurisdiction being used as a vehicle for commencing proceedings in a court which was not otherwise "appropriate". Counsel submitted that it was that sub-paragraph which required a "balancing exercise" in determining whether it be "more appropriate" that the proceedings be dealt with by the "forum" rather than by a court which would have lacked jurisdiction to entertain them apart from the provisions of the cross-vesting legislation. He submitted that the balancing exercise is concerned with circumstances such as convenience to the parties, expense, comparative procedures to be adopted and the like. He referred to a statement made by Wilcox J in Bourke & Ors. v. State Bank of New South Wales (1989) ATPR 40-924 when he said:-

"Finally, in connection with this
subparagraph the Court must consider 'the
interests of justice'. In my opinion, this
phrase ought to be read widely. Under that
rubric, as it seems to me, the Court is
entitled to consider not only the ability of
a particular court to deal with all aspects
of a matter, and to make and to enforce all
the orders to which a party may be entitled,
but also adjectival matters such as the
availability of particular evidence, the
procedures to be adopted, the desirable venue
for trial and the likely hearing date. It is
not in 'the interests of justice' to adopt a
course, in relation to those matters, which
places unnecessary burdens and delays upon
the parties to the litigation." (At p 49,999)

40. The heart of counsel's submission was that the considerations alluded to by Wilcox J were appropriate matters to be taken into account where the cross-vesting legislation had brought about a result that there are two (or more) courts able to exercise the jurisdiction invoked by the plaintiff. However, where that result has not been brought about by the Act, but is one which exists (and existed) independently of it, the plaintiff's choice of forum should be a paramount consideration. He quoted a further passage from the judgment of Wilcox J relating to an equivalent provision, s.5(4)(b). At p 50,000, Wilcox J said:-

"The final subparagraph in sec. 5(4)(b) of
the Jurisdiction of Courts (Cross-vesting)
Act is framed in wide and vague terms. It
must be made to appear that it is 'otherwise
in the interests of justice' that the
relevant proceeding be determined by the
relevant Supreme Court. I take this to be a
charter for the Court to take the course
which appears to it to be more just,
interpreting that word widely. However, for
an applicant's choice of forum to be
overridden, there must be some objective
factor which makes it possible to say that
the interests of justice will be better
served by transfer than by non-transfer.
Where, as here, it is impossible to identify
any such factor, the subparagraph has no
application."

Earlier he had said, at p 49,998:-

"The legislation does not authorise the
transfer of a proceeding to another court
simply because a judge forms an intuitive
view that this would be an appropriate thing to do."

41. The Act has been considered by the New South Wales Court of Appeal in Bankinvest A.G. v. Seabrook & Ors. (Bankinvest), the judgment in which, handed down on 30 September 1988, is as yet, so far as I know, unreported. In that case, as appears from the leading judgment of Rogers A-JA with whom Street CJ specifically and Kirby P generally (although with reservations) concurred, the plaintiff was a Swiss corporation having in Sydney its only place of business in Australia. Through that office it made loans of money to Australian companies and individuals. In the instant case it made a loan to a company so that it might acquire, develop, subdivide and sell some land. The loan was secured, inter alia, by the guarantees of the defendants. The agreement between the plaintiff and the company provided that legal proceedings might be brought in the courts of the State of Queensland or the Commonwealth of Australia, the borrower submitting to the jurisdiction of each such court and waiving any objection to any legal action or proceedings in any such court on the grounds of venue or forum non conveniens. The agreement also provided that notwithstanding the submission to jurisdiction just referred to the plaintiff might bring proceedings in whatever jurisdiction it chose and that its bringing of any legal action or proceedings in any jurisdiction should not preclude it from bringing any such legal action or proceedings in any other jurisdiction. A significant feature of the case was that the defendants sought to have their guarantees declared void because of the plaintiff's alleged failure to comply with the Money Lenders Act 1916 (Queensland).

42. A number of what were conceded to be related actions had been begun in the Supreme Court of Queensland. As Rogers A-JA remarked, it was apparent, in the result, that the Queensland proceedings tendered issues which were all comprehended within the New South Wales proceedings. The New South Wales action enlarged the ambit of the issues and, as well, included parties who were not involved in the Queensland proceedings. It was clear beyond argument, he said, that if both the New South Wales and the Queensland proceedings were to proceed there would be two courts in Australia required to make a determination of many of the same issues.

43. Rogers A-JA summarised the effect of paragraphs (i), (ii) and (iii) in the case he was considering under the respective headings of "Related proceedings in Queensland make that Court more appropriate", "Jurisdiction only by reason of cross-vesting", and "The interests of justice". He found, under the first heading, that paragraph (i) applied to the action brought by Bankinvest A.G. and found that paragraph (ii) also applied. In these circumstances it was unnecessary that he should go on to consider the effect of paragraph (iii) under the heading "The interests of justice". However, he did so and although his consideration of the effect of that paragraph must in the circumstances be considered to be obiter, it nevertheless represents his considered opinion in which, as I have earlier indicated, Street CJ concurred and Kirby P reserved his consideration of the question. Of the paragraph Rogers A-JA said:-

"Self-evidently, this sub-clause was designed
a provide a 'ground' for a transfer in
circumstances where the proquirements of sub
cls (i) and (ii) (paragraphs (i) and (ii))
are not satisfied. Thus where there are
related proceedings pending in the other
Supreme Courts, the dispute does not involve
matters of inter-State law, in relation to
which jurisdiction is acquired only by reason
of the cross vesting legislation,
nonetheless, the court may effect a
transfer. What then are the 'interests of
justice' which the legislature considers
should be taken into account in this
process? To my mind, the relevant matters
and considerations are essentially the same
as were specified by the House of Lords in
the Spiliada (infra). These considerations
were criticised and held to be inapplicable,
at least by Brennan J, in Oceanic (infra) on
the basis that they are too uncertain. Yet,
in my opinion, they have already, in effect,
been made applicable in Australian courts in
relation to transfers between Supreme Courts
by the various Australian Parliaments. As
this jurisdiction comes to be exercised more
frequently and the courts better acquainted
with the discretion conferred (if not
before), it may be that the perception in
Oceanic that the criteria are uncertain in
content will undergo review.
Absent the presence of related proceedings or
inter-State law, the enquiry directed by
consideration of the 'interests of justice'
encompasses all the matters that determine
which is the more appropriate forum that I
have already discussed. The two
considerations of 'more appropriate' and the
'ends' or 'interests' of justice are used in
the same sense by Lord Goff in the passage I
have already cited (supra ...). I would be
going over ground I have already covered if I
were to discuss the contents of 'interests of
justice' further. I should, however, mention
that its presence and content call for a
rejection of Mr Nicholas' (of senior counsel
for the plaintiff) submission that the
principle of forum non conveniens continues
to exist concurrently with the legislation.
The former has been clearly subsumed by
(paragraph (iii))."

44. In Oceanic Sun Line Special Shipping Co Inc v. Fay [1988] HCA 32; (1988) 62 ALJR 389, the High Court considered an application for stay of proceeding made by a Greek corporation in respect of an action commenced by the respondent in the Supreme Court of New South Wales. The respondent had entered into a contract in New South Wales for a holiday cruise in the Aegean Sea. He was seriously injured during the cruise. A ticket which was eventually provided to the respondent contained a clause purporting to restrict actions against the appellant so as to be brought "only before the courts of Athens Greece to the jurisdiction of which the Passenger submits himself". The earlier document in respect of the cruise which the respondent had received contained no such condition and he was ignorant of it. He brought an action in the Supreme Court of New South Wales. The appellant moved to strike out the action or to stay the proceedings for want of jurisdiction. At first instance the stay was refused. That decision was upheld by the Court of Appeal. An appeal to the High Court was dismissed.

45. The court considered the divergence between English and Australian law as to the question of what Deane J described at p 408 as:-

"... the principles applicable to determine
an application by a defendant to a court of
competent jurisdiction to have proceedings
against him dismissed or stayed on the ground
that the action should be brought in a
tribunal of some other country ..."

46. Until comparatively recently the orthodox approach in both countries had been that followed by the High Court in Maritime Insurance Co Ltd v. Geelong Harbor Trust Commissioners (1908) 6 CLR 196. At p 198, Griffith CJ adopted several statements of principle made by the President, Sir Gorell Barnes, with whom the other members of the Court of Appeal concurred, in Logan v. Bank of Scotland (No.2) (1906) 1 KB 141. The learned President said:-

"The Court should, on the one hand, see
clearly that in stopping an action it does
not do injustice, and, on the other hand, I
think the Court ought to interfere whenever
there is such vexation and oppression that
the defendant who objects to the exercise of
the jurisdiction would be subjected to such
injustice in defending the action that he
ought not to be sued in the Court in which
the action is brought, to which injustice he
would not be subjected if the action were
brought in another accessible and competent
Court;" at p 151.

(The words underlined were added to the judgment by Warrington J in Egbert v. Short (1907) 2 Ch 205 at p 213 and the addition was adopted by Griffith CJ.)

"Yet it seems to me clear that the
inconvenience of trying a case in a
particular tribunal may be such as
practically to work a serious injustice upon
a defendant and be vexatious. This would
probably not be so if the difference of
trying in one country rather than in another
were merely measured by some extra expense
... If, for instance, as was put in argument
a dispute of a complicated character had
arisen between two foreigners in a foreign
country, and one of them were made defendant
in an action in this country by serving him
with a writ while he happened to be here for
a few days' visit, I apprehend that, although
there would be jurisdiction in the Court to
entertain the suit, it would have little
hesitation in treating the action as
vexatious and staying it." at p 151-2.
"If that were not held, I see no reason why
any one abroad might not sue and be allowed
to proceed, against a bank which had a branch
in this country, in respect of transactions
all of which had taken place in another
country where the head office of the bank was
- e.g., Australia or Brazil - and where the
inconvenience of trying the case in this
country would be so enormous as practically
to work the most serious injustice upon the
defendant. This matter is, in this respect,
of general importance, because so many banks
and other mercantile houses which are
established in our Colonies and in the United
States and other foreign countries have
branches here. To a business concern to
allow actions to proceed in such
circumstances when there is a proper and
adequate tribunal in the place where both
parties really are, and dealt with each
other, and all the evidence is, would be
intolerable." at p 152.

47. In England, in Spiliada Maritime Corporation v. Cansulex Ltd (1987) AC 460, Lord Goff, speaking for their Lordships, dealt with what Brennan J in Oceanic described at p 405 as "the nature of the required enquiry" as follows:-

"Since the question is whether there exists
some other forum which is clearly more
appropriate for the trial of the action, the
court will look first to see what factors
there are which point in the direction of
another forum. These are the factors which
Lord Diplock described, in MacShannan's case
(1978) AC 795, 812, as indicating that
justice can be done in the other forum at
'substantially less inconvenience or
expense'. Having regard to the anxiety
expressed in your Lordship's House in the
Socit due Gaz case, 1926 SC (HL) 13
concerning the use of the word 'convenience'
in this context, I respectfully consider that
it may be more desirable, now that the
English and Scottish principles are regarded
as being the same, to adopt the expression
used by my noble and learned friend, Lord
Keith of Kinkel, in The Abidin Daver (1984)
AC 398, 415, when he referred to the
'natural forum' as being 'that with which the
action had the most real and substantial
connection'. So it is for connecting factors
in this sense that the court must first look;
and these will include not only factors
affecting convenience or expense (such as
availability of witnesses), but also other
factors such as the law governing the
relevant transaction ... and the places where
the parties respectively reside or carry on
business.
... If the court concludes at that stage that
there is no other available forum which is
clearly more appropriate for the trial of the
action, it will ordinarily refuse a stay ...
It is difficult to imagine circumstances
where, in such a case, a stay may be granted.
... If however the court concludes at that
stage that there is some other available
forum which prima facie is clearly more
appropriate for the trial of the action, it
will ordinarily grant a stay unless there are
circumstances by reason of which justice
requires that a stay should nevertheless not
be granted. In this inquiry, the court will
consider all the circumstances of the case,
including circumstances which go beyond those
taken into account when considering
connecting factors with other jurisdictions."

48. In Oceanic the High Court by a majority followed its earlier decision in Maritime Insurance Co Ltd v. Geelong Harbour Trust Commissioners (supra), refusing to follow Spiliada.

49. In Australian High Court & Federal Court Practice (CCH) the learned authors remark, in paragraph 45-100 that:-

"The express powers to transfer must be
intended largely to replace the traditional
powers to stay proceedings or to enjoin a
party from commencing or continuing in
another Court."

The remark echoed the comment in an article, "The Cross-vesting Scheme", by the Solicitor-General for New South Wales, Mr Keith Mason QC, and Professor James Crawford, 62 ALJ 328 at p 340 where they said:-

"It is likely that the scheme will produce
changes in the rules of forum non conveniens
alis alibi pendens."

At p 344, the learned authors advert to the possibility of a conditional transfer under the scheme. They said:-

"There may be circumstances where the new
scheme operates to the disadvantage of a
party. At common law, a defendant seeking to
have a matter litigated in the forum of his
or her choice may have to submit to a term
preventing a special limitation statute being
pleaded if the plaintiff's proceeding in
another court is stayed under the forum non
conveniens rule. It is not entirely clear
whether a court ordering the transfer of
proceedings to another can impose a term to
this effect. It might be argued that the
matter should be left to the transferee court
to decide when applying its discretion as to
choice of law rules under s.11. If this were
the correct approach, and if the statutory
powers to transfer proceedings given by s.5
of the respective Acts are seen as something
of a code for Australian courts, then the
cross-vesting scheme may leave the parties in
the 'inconvenient' forum because that is the
only way to do full justice to the plaintiff
who first invoked it."

The comment is, if I may say so with respect, perceptive. If it were the case (I do not think it is) that a court, exercising its power under the Act to transfer an action to another court, were empowered to impose conditions in respect of the transfer upon either one of the parties (for it would seem, again as the learned authors remark, at p 344, that forum non conveniens may now be invoked by a plaintiff) it would be relatively easy for the court to deal with matters which might otherwise militate against the 'interests of justice'. However, the enactment of a provision allowing such conditional transfer would seem to bristle with difficulties, not the least of which would be the interference with the sovereignty of the transferee court. In any event, that court might find in due course that the conditions which seemed just to the transferring court might prove to be inappropriate restrictions on the party bearing the burden of the conditions.

50. In what I have just said there is implicit the view that the approach to be taken to paragraph (iii) is that taken in Spiliada.

51. In Bankinvest, as will be seen from the passage I have earlier quoted from his judgment, Rogers A-JA held that the phrase "in the interests of justice" where used in paragraph (iii) is to be interpreted as requiring that attention be given to matters and considerations essentially the same as those specified by the House of Lords in Spiliada. As I understand the approach taken by Rogers A-JA, he considered that the "more appropriate" court referred to in paragraphs (i) and (ii) is that in which paragraph (iii) would have it that it is "otherwise in the interests of justice" that a matter should proceed. But it seems to me that it is possible that, in using the two different phrases in the several paragraphs, the legislature meant to point up a difference between the relevant considerations applicable in respect of paragraphs (i) and (ii) and those applicable in respect of paragraph (iii).

52. It may well be that the law on the subject will develop as Rogers A-JA forecasts but for the moment I find, with the greatest respect, some difficulty with his present interpretation. I think that in Oceanic the High Court was concerned with the "interests of justice" and the majority dealt with the problem in a way which ensured that the relevant discretion should continue to be exercised on grounds as narrow as possible. If that be so it may be that the phrase is to be interpreted on the basis of the considerations applicable in respect of an application for stay of proceedings by a defendant made before the Act came into force.

53. Section 5(7) of the Act provides that a court may transfer a proceeding under s.5 on the application of a party to the proceeding, of its own motion or on the application of the Attorney-General of the Commonwealth or of a State or Territory. It may be, but I do not think it is, the case that the fact that a court may transfer a proceeding of its own motion may indicate that the onus which lay upon a defendant on an application for stay of proceedings against him before the Act came into force may not now be applicable. I do not think that I would have transferred these matters to the Supreme Court of New South Wales of my own motion. I propose to deal with the applications on the basis that I must be satisfied that it is "in the interests of justice" that they be transferred to the Supreme Court of New South Wales and that the defendant, as applicant, bears the onus.

54. However, whatever be the correct interpretation of the phrases, I think that these applications may be decided on the narrower ground that an order for transfer should be made if, having made all due allowance for the plaintiffs' right to bring their actions in this Court with such forensic advantages as may attend on that course, the expense and inconvenience which would fall upon the defendant will result in real injustice to it. See In re Norton's Settlement; Norton v. Norton (1908) 1 Ch 471 at p 482, per Vaughan Williams LJ.

55. In Oceanic (supra) at p 408, Deane J said that:-

"A party who has regularly invoked the
jurisdiction of a competent court has a prima
facie right to insist upon its exercise and
to have his claim heard and determined. That
prima facie right to the exercise of
competent jurisdiction which has been
regularly invoked can be displaced by statute
but 'the language of any such statute should
be jealously watched by the courts, and
should not be extended beyond its least
onerous meaning unless clear words are used
to justify such extension'. (per Scrutton J,
In re The Vexatious Actions Act, 1896; In re
Bernard Boaler (1915) 1 KB 21 at 36). The
common law itself has traditionally
recognised certain special categories of case
in which the exercise of jurisdiction must or
may be refused in circumstances where
diplomatic custom, international comity,
public policy or considerations of justice
require or may support that course. In this
country, those special categories of case
have not traditionally encompassed a general
judicial discretion to dismiss or stay
proceedings in a case within jurisdiction
merely on the ground that the local court is
persuaded that some tribunal in another
country would be a more appropriate forum."

56. That passage points up one of the difficulties in this case. It is to be remembered that the competing jurisdictions in Oceanic were those of Greece and of New South Wales. Although, as was pointed out in Pederson v. Young [1964] HCA 28; (1964) 110 CLR 162 at p 170 "The States are separate countries in private international law, and are to be so regarded in relation to one another" (see also Laurie v. Carroll [1958] HCA 4; (1958) 98 CLR 310 at p 331), the statement must not be applied too literally. The States and Territories are not entirely "foreign" to one another. This means, in my opinion, that this Court is not, when dealing with an application such as that which I am considering, concerned with the application of what may be described, following the words of Brennan J in Oceanic at p 407, as a chauvinistic attitude, particularly having regard to the provisions of s.118 of the Constitution.

57. But it must be emphasised that the plaintiffs were at liberty to choose any one of eight courts in which they might have brought their actions. They could hardly have been said to be forum shopping when they made their choice of this Court. If their allegations prove to be correct the tort was committed in the Australian Capital Territory and it matters nothing, prima facie, that since it was committed simultaneously in other jurisdictions it might be more conveniently defended elsewhere. They could hardly have brought their actions in the several jurisdictions for that course would undoubtedly have been met by successful applications for a stay in respect of all but one action. Maple v. David Syme & Co Ltd (1975) 1 NSWLR 97.

58. One of the matters to be considered is whether the plaintiff by invoking the jurisdiction of the Court in which he brings his action thereby obtains a forensic advantage. As to this, Deane J said at pp 409-10:-

"If a not illegitimate advantage which the
plaintiff would lose if proceedings in a
prima facie inappropriate court were
dismissed or stayed is inconsequential when
compared to the oppression or vexation of the
defendant if the proceedings are permitted to
continue, there will be no relevant injustice
to the plaintiff involved in a stay or
dismissal. All that will be involved is that
the requirements of justice dictate that his
claim to that comparatively inconsequential,
though not illegitimate, advantage be overridden."

He went on to say:-

"On the other hand, if the action has no
significant connection at all with the
territorial jurisdiction of the court in
which it is instituted, it could not be said
that the mere fact that the plaintiff was
pursuing a not illegitimate advantage for
himself (presumably to the disadvantage of
the defendant) must, regardless of the burden
imposed upon the defendant by reason of the
location of the forum, preclude a conclusion
that a continuance of the proceedings would
be vexatious or oppressive (cf. eg. the
judgment of Vaughan Williams L.J. in In re
Norton's Settlement; Norton v. Norton (1908)
1 Ch 471 at 482 where his Lordship made plain
that it would suffice for a stay if 'the
expense and inconvenience are of such a
character that to allow the action to go on
would result in real injustice to the other
litigant' and explained that, in the
particular case, he had 'not thought it
necessary to deal in detail with the question
of the relative expense and convenience (of
proceedings in the competing forums) because
... the English venue was not chosen for any
legitimate reason')."

59. It seems to me, therefore, that in each case which I am considering the contest is between the plaintiff's undoubted right to bring his action in this Court with such convenience as may attend upon that course and with such forensic advantage as may be available to him because of it and the defendant's right to be shielded from injustice if it can show that, to use the words of Vaughan Williams LJ set out in the passage from the judgment of Deane J in Oceanic quoted above "the expense and inconvenience are of such a character that to allow the action to go on would result in real injustice to the (defendant)".

60. I return to the reasons put forward by Mr Pollack as having influenced the decision to bring the actions in this Court.

61. The first and second reasons he advanced amount, in my opinion, to no more than what I may describe, I trust without offence, as rhetorical flourishes. As to the third, I assume that every effort was made to stop the publication of the matter complained of. If the actions be tried in the Supreme Court of New South Wales, the plaintiffs could not, for reasons to which I will come in a moment, recover exemplary or punitive damages in respect of publication of the allegedly defamatory material either in that State or, it may be, in any other jurisdiction. (Exemplary damages may be taken to be punitive damages. Australian Consolidated Press Ltd v. Uren [1967] HCA 21; (1969) 1 AC 590 at p 636.)

62. It seems to me that, if a defendant persists in publication of allegedly defamatory matter despite strenuous efforts to prevent the publication, it runs the very real risk that it may be mulcted in exemplary damages if sued in a court where such damages are recoverable. As a logical corollary, a plaintiff who complains of such publication is entitled to seek such damages. It would, in my view, do such a plaintiff real injustice if he were denied the opportunity to seek them.

63. Section 46(3) of the Defamation Act 1974 (New South Wales) provides that:-

"In particular, damages for defamation -
(a) shall not include exemplary damages, and
(b) shall not be affected by the malice or
other state of mind of the publisher at
the time of publication complained of or
at any other time, except so far as that
malice or other state of mind affects
the relevant harm."

64. It follows, therefore, that in an action dealt with in the Supreme Court of New South Wales a plaintiff cannot recover exemplary damages in respect of publication in that State.

65. Until the recent decision of the High Court in Breavington v. Godleman [1988] HCA 40; (1988) 62 ALJR 447, there was, I think, no doubt that in an action for defamation brought in any jurisdiction in Australia in respect of the publication of defamatory matter in more than one jurisdiction, including that of the forum, a defendant was entitled to plead in respect of the publication in a particular jurisdiction any defence available in that jurisdiction and, in addition, any defence available under the lex fori. In other words, a defendant might have pleaded defences available under the lex fori and, in respect of publication in a particular jurisdiction, under the lex loci delicti. See Koop v. Bebb [1951] HCA 77; (1951) 84 CLR 629, Anderson v. Eric Anderson Radio & T.V. Pty Ltd [1965] HCA 61; (1965) 114 CLR 20, Robinson v. Shirley [1982] HCA 1; (1981-1982) 149 CLR 132 at p 134, Cawley v. Australian Consolidated Press Ltd (1985) 1 NSWLR 225 and Carleton v. Freedom Publishing Co Pty Limited (1982) 45 ACTR 1.

66. It seems that Breavington v. Godleman has effectively overruled in Australia the rule laid down in Phillips v. Eyre (1870) LR 6 QB 1. If that be so it is no longer the case that a plaintiff who sues in an Australian jurisdiction in respect of a "foreign" tort which, had it been committed within the jurisdiction of the forum, would have been actionable as a wrong there and also actionable as giving rise to civil liability in the place where it was committed, looks to the lex fori as determining his rights in respect of both procedural and substantive law. Consideration of the several judgments leads to the conclusion that it may well be the case that the lex fori could be applied in certain circumstances. But it seems to be more likely that the substantive law to be applied is that of the lex loci delicti. (I think that the law applicable to exemplary damages is substantive. Breavington v. Godleman at pp 453-4 per Mason CJ.) It is not now possible, in my view, to say with any degree of assurance that the lex fori would govern completely the conduct of these actions if transferred to the Supreme Court of New South Wales. I hasten to add that the question of such multiple torts as I am considering was not dealt with by the High Court in Breavington v. Godleman. If, however, the lex fori is completely applicable, a possible anomaly immediately appears when one turns to s.11 of the Act. The Supreme Court of New South Wales would have to apply the substantive law of defamation of at least two States. As I understand the situation, rights of action in respect of defamation in the States of Queensland and Tasmania arise under their written law. See the surviving provisions of The Defamation Law 1889 and the relevant provisions of the Criminal Code 1899 of the State of Queensland and the Defamation Act 1957 of the State of Tasmania. It may also be, I have not been able to investigate the matter fully, the case under Western Australian law. If the lex fori were to be applied fully following transfer to the Supreme Court of New South Wales, that Court would be in the anomalous position of having to apply, as a result of s.11, different law as to damages in respect of the "foreign" jurisdictions so that in some exemplary damages may be recoverable and in some not and this notwithstanding that in all those jurisdictions exemplary damages may be recovered. One can accept a specific provision which prohibits the award of exemplary damages in one jurisdiction but it is more difficult to accept it on what appears to be a relatively arbitrary basis.

67. The discussion in respect of exemplary damages deals with the third, fourth and sixth reasons advanced by Mr Pollack.

68. As to the fifth reason, the plaintiffs Mr William Waterhouse and Mr Robert Waterhouse could not have known of the attitude of the Director of Public Prosecutions for New South Wales to the prosecutions which they had instituted and with which I have dealt more fully in my reasons for judgment handed down on 6 March 1987. His attitude could not have influenced their bringing their actions in this Court. The action of the Director in determining that no indictment should be presented against the producer of the segment and the journalist who presented it meant that those two plaintiffs were deprived of the opportunity to continue the prosecutions. As I have said, one of the reasons given by the Director was that they had commenced a civil action in which it was open to them to seek both general and punitive damages. Deprivation of the opportunity to prosecute may not have had much real value but in the circumstances it weighs something in the scale in favour of the two Messrs Waterhouse.

69. I do not think that Mr Pollack's seventh reason as advanced has any particular validity in the circumstances which I have tried to analyse.

70. What I have said in relation to exemplary damages applies to some degree to the defence of contextual implication under s.16 of the Defamation Act 1974. Such a defence will, in any event, if the actions be transferred to the Supreme Court of New South Wales, be available in that Court not only in respect of publication in New South Wales but in respect of publication in any other jurisdiction. The provision is, I think, procedural and the lex fori governs procedure. If the action continues in this Court that defence will be available only in respect of publication in New South Wales. This is recognised implicitly by the defendant in the defences filed by it in respect of the actions brought by the Messrs Waterhouse.

71. As to the belief held by the Messrs Waterhouse that because they were bookmakers they would not receive a fair trial from a jury I point out that no evidence was offered in support of this belief. I think I should disregard it as a reason. One cannot assume that the members of a jury would be false to their oath. To quote again from what Lord Diplock said in Williams v. Beesley (supra):-

"To allow the court's decision as to the mode
of trial to be swayed by the existence of
such a belief by one of the parties, however
sincerely it might be held, would be to
acknowledge that there was some substance in
it and that our system of justice lacks the
firm foundation of an impartial judiciary."

72. If one substitutes for the phrase "am impartial judiciary" words to the effect of "impartial judicial institutions" the sentence may be taken to be as applicable to the cases which I am considering as it was in Lord Diplock's considerations.

73. The last reason advanced by Mr Donald which it is necessary to consider is that relating to the probable hearing date in New South Wales. As to this, I am not satisfied that the case would proceed to hearing more quickly in New South Wales than in this Court, particularly since I would expect that, if the matter were transferred to the Supreme Court of New South Wales, an application for amendment of the defences might be expected to follow and add to the length of time before which the actions might be heard. I do not think this consideration ought to weigh at all amongst the factors which I am called upon to deal with.

74. In considering these applications it is of importance that the actions were commenced before the Act came into operation. As I have already said, each of the plaintiffs might have commenced his action in any of the several jurisdictions in which the defamatory matter was allegedly published. Their choice of this Court as a forum was not capricious and brought with it advantages which they would not have had had they begun their actions in the Supreme Court of New South Wales where the provisions of ss.16 and 46 of the Defamation Act 1974 may have constituted a detriment to them.

75. The defendant has made out a substantial case that it will be put to very considerable extra expense and inconvenience if the actions are continued in the Australian Capital Territory. If it succeeds in the action it will no doubt be entitled to recover as costs that part of the additional expense properly characterised as party and party costs. If it loses it will have incurred expenses totalling on my estimates about $105,000 in amounts ranging from approximately $49,000 to $12,500. It is not, I think, correct to say that these sums amount to a "drop in the bucket". They constitute, in my opinion, such real expense and the need for many highly paid persons to be absent for so long from their bases constitutes such real inconvenience as would result in real injustice to the defendant. Against that injustice must be balanced the considerations raised by ss.17 and 46 of the Defamation Act 1974 (NSW), any supposed advantage trial by judge alone would bring and general convenience to the plaintiffs' witnesses. I have already dealt with the question of trial by judge alone and discarded it as a balancing factor. Nor do I think that the convenience of the plaintiffs' witnesses is a factor to be taken much into account.

76. Section 17 of the Defamation Act 1974 (NSW) may constitute a real detriment to those plaintiffs against whom it might be invoked. But in any event it is available in respect of the proceedings concerning the publication in New South Wales and it is for that publication that one might expect the heaviest damages, if any, to be awarded.

77. So far as s.46 is concerned, I think that the transfer will not affect the right of the plaintiffs to claim exemplary damages in respect of the publication in all States and Territories except New South Wales. If I be wrong in that they may, in my view, be claimed at least in Queensland and Tasmania and, possibly, in Western Australia and the detriment will be lessened accordingly.

78. In the result, I think the balance favours the defendant and that it has in each case discharged the onus resting upon it.

79. In ruling in this way I have kept in mind the fact that s.13 of the Act provides that there should be no appeal in respect of a decision to transfer a proceeding.