Arrowcrest Group Pty Limited and Michael Joseph White v Advertiser News Weekend Publishing Company Pty Limited [1989] ACTSC 34 (19 July 1989)

SUPREME COURT OF THE ACT

ARROWCREST GROUP PTY. LIMITED and MICHAEL JOSEPH WHITE v. ADVERTISER
NEWS WEEKEND PUBLISHING COMPANY PTY. LIMITED
S.C. No. 265 of 1989
Cross-vesting

COURT

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

CATCHWORDS

Cross-vesting - proceedings commenced in the Supreme Court of the Australian Capital Territory in respect of defamatory material allegedly printed and published in South Australia, the Australian Capital Territory and in other States and Territories of the Commonwealth - application to transfer proceedings to the Supreme Court of South Australia - whether in the interests of justice to order such transfer - Jurisdiction of Courts (Cross-vesting) Act 1987 s.5(b)(iii).

Jackson v. John Fairfax & Sons Limited and Another (unreported Miles C.J., Supreme Court of the ACT, 23 December 1988)

Gutman v. Clouston and Another (unreported, Gallop J., Supreme Court of the ACT, 13 July 1989)

Toomey v. Mirror Newspapers Limited (1985) 1 NSWLR 173

Waterhouse v. Australian Broadcasting Corporation (unreported Kelly J., Supreme Court of the ACT, 3 May 1989

Comalco Limited v. Australian Broadcasting Commission (1985) 64 ACTR 11

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

Bankinvest A.G. v. Seabrook & Ors. (1988) 14 NSWLR 7111

HEARING

CANBERRA
19:7:1989

ORDER

The plaintiffs and the defendant within 7 days amend the documents filed relating to this application by placing above the title the words "Jurisdiction of Courts (Cross-vesting) Act 1987".

The motion dated 9 June 1989 be dismissed.

DECISION

This is an application under s.5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (the Cross-vesting Act) for an order transferring the proceedings to the Supreme Court of South Australia. The application is made on behalf of the defendant by notice of motion dated 9 June 1989.

2. Before considering the matter further I should repeat what I said in Jackson v. John Fairfax & Sons Limited and Another (unreported, 23 December 1988) that in applications made under the Cross-vesting Act, it is essential for practitioners to comply with the rules set out in Part 9 Order 78. Accordingly I propose to order that both the plaintiffs and the defendant amend the documents filed relating to this application by placing above the title the words "Jurisdiction of Courts (Cross-vesting) Act 1987". When the order disposing of the application is finally taken out those words are to precede the title shown on the document embodying the order.

3. Section 5 of the Cross-vesting Act provides in part as follows:
"5(2) 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;
(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;
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, the first court shall transfer the relevant
proceeding to that other Supreme Court."

4. It is common ground that if the application is to succeed it can succeed only under sub-paragraph (iii). There is no proceeding in the Supreme Court of South Australia out of which this proceeding arises or to which this proceeding is related, and hence sub-paragraph (ii) cannot apply.

5. By statement of claim endorsed on a writ issued 11 May 1989, the plaintiffs sue the defendant for damages for an alleged defamatory publication appearing in a newspaper published by the defendant on 7 May 1989.

6. In paragraph 3 of the statement of claim the plaintiffs allege that "the defendant is and was at all material times the publisher of the Sunday Mail newspaper which is printed in Adelaide in the State of South Australia and published in that State and other States and Territories of the Commonwealth of Australia, including the Australian Capital Territory".

7. Paragraph 4 of the statement of claim alleges that "on or about 7 May 1989 the defendant published of and concerning the plaintiffs the material set out in Schedule A annexed hereto".

8. In paragraph 5 of the statement of claim the plaintiffs allege that the material complained of conveyed the following imputations which were defamatory of the plaintiffs:

"(a) That the plaintiffs were guilty of
disloyalty to the State of South Australia;
(b) That the firstnamed plaintiff had behaved
as a disgraceful corporate citizen;
(c) That the plaintiffs were guilty of
deliberately undermining the economic interests
of Australia;
(d) The secondnamed plaintiff was guilty of
deliberate and repeated acts of dishonesty."

9. It is unnecessary to set out Schedule A to the statement of claim. It is sufficient to say that it is concerned with the decision of the first plaintiff to close down one of its activities, namely the manufacture of agricultural machinery under the name of John Shearer. The article mentions that agricultural machinery has been manufactured in South Australia over a period of one hundred and twenty-six years, that the closing down of the business means the loss of jobs to some three hundred South Australians, that the first plaintiff has received considerable financial assistance from both the South Australian State Government and the Federal Government. It refers also to an industrial dispute to which the first plaintiff is a party and in which the second plaintiff has taken an active role. (That dispute appears to have been the subject of proceedings in the Industrial Relations Commission, a body which is concerned with industrial disputes extending beyond the boundaries of one State.) There is also reference to some land owned by the first plaintiff at Kilkenny, which is presumably in South Australia, which the writer of the article suggests could have been sold in order to avoid closing down the manufacturing business.

10. The defendant entered an appearance on 9 June 1989, but has not yet filed a defence. No particulars of the statement of claim have been sought.

11. In the recent decision of Gallop J. in this Court in Gutman v. Clouston and Another (unreported, 13 July 1989), his Honour recognized the principle that "the common law permits a plaintiff who has pleaded a single cause of action against a newspaper defendant to recover as ordinary compensatory damages for the injury to his reputation caused by the entire issue of that newspaper published by the defendant, be it within the State in which the action is brought or elsewhere". That principle was enunciated by Hunt J. in Toomey v. Mirror Newspapers Limited (1985) 1 NSWLR 173 at 175 after a comprehensive review of the authorities. However, in the earlier decision of Waterhouse v. Australian Broadcasting Corporation in this Court (3 May 1989) Kelly J. discussed the reasoning in Toomey without being required to rule decisively on its correctness because the case there before his Honour was concerned not with the publication of a newspaper but with publication by television broadcast. It is not necessary for me in this application to rule on the correctness of the Toomey principle.

12. It is to be observed that the principle does not apply, or has not yet been held to apply, to publication otherwise than by a newspaper. Hence Blackburn C.J. in Comalco Limited v. Australian Broadcasting Commission (1985) 64 ACTR 11 awarded damages for defamation by the medium of a television broadcast throughout Australia upon the basis that there was a separate cause of action in New South Wales, Victoria and the ACT. (However, on appeal to the Full Court of the Federal Court of Australia the total damages were reduced without reference to the individual components for each State and the Territory: (1986) ALR 259.)

13. In the light of the above it may be observed that if the plaintiffs wished to rely on the Toomey principle, they could have sued in the Australian Capital Territory seeking to establish the liability of the defendant by reference only to the publication of the newspaper within the Australian Capital Territory, but nevertheless claiming damages in respect of the publication of the same issue of the newspaper throughout Australia. Indeed if the proceedings remain in this Court the plaintiffs may still choose to continue in that way.

14. However, the plaintiffs' claim as pleaded is ambiguous. It is either an allegation of separate publication in the Australian Capital Territory as well as in other parts of Australia whereby the plaintiffs seek to establish liability and to recover damages for the publication of the newspaper in each of those jurisdictions, or alternatively, it may be regarded as an allegation of a publication within the ACT which gives rise to liability to the plaintiffs on the part of the defendant for damages flowing from the publication of the newspaper not only in the ACT but elsewhere in Australia.

15. Mr. Kinsella, who appeared for the plaintiffs, submitted that if the plaintiffs restricted their claim in this Court to the single cause of action arising from the publication within the ACT, they could not or should not be forced to litigate their case somewhere else. However, I think that the discretion given to the Court under sub-paragraph (iii) is so wide that the plaintiffs are not in as impregnable a position as that asserted by counsel.

16. Mr. Higgins, Q.C., for the defendant submitted that the plaintiffs have pleaded several causes of action and that the principal cause of action is the publication in South Australia. He submitted that that factor, taken together with the considerations of extra cost and inconvenience if the proceedings were to remain in this Court, meant that the interests of justice lay in the proceedings being terminated in this Court and continued in the Supreme Court of South Australia.

17. According to the affidavit of Kerry William Sullivan, the editor of the Sunday Mail, sworn 16 June 1989, the circulation figures for 7 May 1989 were for metropolitan South Australia 203,956, for country South Australia 12,337 and for the ACT 36. There were relatively small circulation figures for the other States and for the Northern Territory. The journalists involved in the publication of the article, according to the affidavit, are employed in Adelaide and live in Adelaide. The first plaintiff has a registered office in Adelaide, the second plaintiff resides there. The defendant is said to be "a South Australian company carrying on business in that State" and it is claimed on behalf of the defendant that the witnesses and relevant evidence will all be found in South Australia. Hence it is submitted that all of the factual issues relate to South Australia and that all of the relevant evidence, both testamentary and documentary, is to be found in South Australia.

18. It is certainly true that on the face of it the case looks "more like" a South Australian case than an ACT case. Yet, it must be borne in mind as Wilcox J. said in Bourke and Others v. State Bank of New South Wales (1989) ATPR 40-924:

"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."

19. It is, in my view, necessary to find some particular factors which make it "otherwise in the interests of justice" to order the transfer out of this Court to the Supreme Court of South Australia. The defendant chose to publish in this Territory and the plaintiffs have an undoubted right to invoke the jurisdiction of this Court to try a cause of action which they assert arises out of that publication. It is not suggested that the proceedings in this Court have been commenced improperly. The plaintiffs point to certain factual material which has on the face of it an ACT or "national" connection. For instance, Andrew William Gwinnett, the Deputy Chairman and Chief Executive Officer of the first plaintiff, has sworn an affidavit to the effect that the firstnamed plaintiff has extensive interests and connections in the Australian Capital Territory, that it has at all material times been involved in negotiations with Federal Government Departments and embassies located in Canberra relating to export development. The complaint is made that it is in these circles that the reputations of the plaintiffs are most likely to suffer.

20. As Kelly J. has pointed out in Waterhouse, it appears doubtful that the term "otherwise in the interests of justice" appearing in sub-paragraph (iii) is to be read in the same sense as the term "more appropriate" in sub-paragraphs (i) and (ii) (cp Rogers A.J.A. in Bankinvest A.G. v. Seabrook & Ors. (1988) 14 NSWLR 7111.)

21. In my view, the competing demands of the right of the plaintiffs to maintain an action in this Court for a tort allegedly committed here on the one hand, and of the interest of the defendant in having the case conducted in South Australia on the other hand, do not result in the interests of justice being served by transferring the proceedings to South Australia. The interests of justice are more likely to be served as the case presently stands by recognizing the right of the plaintiffs to maintain the action in this Territory.

22. That is not to say that at some stage in the proceedings it might emerge that the interests of justice would be better served by transferring the case out of this Court to South Australia. At this stage the exact nature of the plaintiffs' claim or claims is not clear. Whether they are suing on one cause of action only for the publication within the Australian Capital Territory or in respect of several causes of action for several publications in Australia, including the Australian Capital Territory, cannot be determined until particulars have been sought, or possibly, until the statement of claim has been amended. The extent to which it will be necessary to call witnesses from South Australia, Canberra or any other part of Australia, similarly, cannot be determined, at least with any confidence, until after a defence has been filed and issue joined.

23. I should mention that each of the plaintiffs between themselves appears to be suing on a distinct cause of action or on distinct causes of action. As they each have an individual reputation and not a joint reputation I fail to see how they can rely upon a common cause of action in defamation. That, however, is a matter upon which I did not hear from counsel and which would not appear to affect the outcome of the application for transfer.

24. In my view, the defendant has not made out a case that it is quite otherwise "in the interests of justice" within sub-paragraph (iii) that the proceedings should be transferred to the Supreme Court of South Australia. The motion is dismissed. I shall hear the parties on costs.