Arrowcrest Group Pty Limited and Michael Joseph White v Advertiser News Weekend Publishing Company Pty Limited [1993] ACTSC 23; (1993) 113 FLR 57 (26 March 1993)

SUPREME COURT OF THE ACT

ARROWCREST GROUP PTY. LIMITED and MICHAEL JOSEPH WHITE v. ADVERTISER NEWS
WEEKEND PUBLISHING COMPANY PTY. LIMITED
No. SC265 of 1989
Number of pages - 13
Cross-Vesting - Defamation - Practice and Procedure - Jurisdiction of Courts

[1993] ACTSC 23; (1993) 113 FLR 57

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles CJ(1)

CATCHWORDS

Cross-Vesting - application to transfer proceedings to the Supreme Court of South Australia - previous application dismissed - further evidence - whether in the interests of justice to order such transfer - factors for consideration include comparative costs factors especially where increased costs to defendant with no discernible advantage to plaintiffs - choice of jurisdiction not a forensic advantage to plaintiffs.

Defamation - statement of claim - publication in the ACT and other States - availability in the ACT of defences available in interstate jurisdictions.

Practice and Procedure - need for applications for transfer to be disposed of cheaply and expeditiously.

Jurisdiction of Courts - Jurisdiction of Courts (Cross-vesting) Act 1987, para. 5(2)(iii), sub-s.5(7), para. 13(a).

Supreme Court Rules, Order 78 Rule 3(2)

Defamation Act 1901 (ACT), s.6

McKain v. R.W. Miller and Company (South Australia) Pty. Limited [1991] HCA 56; (1991) 174 CLR 1

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

HEARING

CANBERRA, 9 February 1993
26:3:1993

Counsel for the plaintiffs: Mr. T. Tobin, QC and

Mr. I. Nicol

Solicitors for the plaintiffs: Gallens Crowley and Chamberlain
as agents for Barker Gosling

Counsel for the defendant: Mr. T. Blackburn

Solicitors for the defendant: Blake Dawson Waldron

ORDER

The Court orders that:

1. The proceedings be transferred to the Supreme Court of South
Australia.

DECISION

This is an application by motion on notice for a transfer of proceedings to the Supreme Court of South Australia pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Commonwealth) (the Cross-vesting Act). An amended notice of motion was filed on 8 February 1993 in order to comply with Order 78 Rule 3(2) of the Supreme Court Rules which requires the words "Jurisdiction of Courts (Cross-vesting) Act 1987 of the Commonwealth" to be placed above the title of all documents filed in proceedings for relief under the Cross-vesting Act.

2. A previous application for a similar order was dismissed by me on 19 July 1989. It is submitted on behalf of the applicant defendant that the situation has changed since then, and changed sufficiently to justify making the order sought. In any event it is appropriate to restate shortly the effect of what I said in dismissing the previous application and to add whatever is relevant in relation to subsequent developments.

3. By statement of claim endorsed on the writ issued on 11 May 1989, the plaintiffs sue the defendant for damages for an alleged defamatory publication appearing in The Sunday Mail newspaper published by the defendant on 7 May 1989. The Sunday Mail is printed in Adelaide and circulated mostly in South Australia. However, there is a small circulation in the Australian Capital Territory. According to affidavit evidence presented on behalf of the defendant, thirty-six copies of the issue of 7 May 1989 were sent to Canberra for distribution among eight newsagency outlets and for placement in the National Library and the Parliamentary Library.

4. Paragraph 3 of the statement of claim alleges that the defendant published the newspaper concerned in South Australia "and other States and Territories of the Commonwealth of Australia including the Australian Capital Territory". That claim is made without any distinction being drawn between damages claimed in respect of publication in one State or Territory and damages claimed in respect of publication in some other State or Territory. By letter dated 8 February 1993 the plaintiffs' solicitors informed the defendant's solicitors that the plaintiffs "rely on one cause of action only, namely publication in the ACT, and rely on publication in South Australia and the other States and Territories as a matter going to damages". The letter rejected a suggestion that the statement of claim should be amended.

5. The defence filed on 25 October 1989 makes some limited admissions about publication, denies the imputations pleaded in the statement of claim and pleads in the alternative that the words complained of "are true in substance and fact". There is also a further alternative plea of fair comment on a matter of public interest.

6. In their reply to the plea of fair comment on a matter of public interest filed on 22 November 1989, the plaintiffs allege malice and lack of opinion honestly held.

7. In my view the pleadings need attention. Counsel for the parties did not attempt to dissuade me from that view. The statement of claim should have been amended to separate the publication in the Australian Capital Territory as a matter going to jurisdiction from publication elsewhere as a matter going to damages only. As the statement of claim stands, it is ambiguous and is open to the interpretation that the plaintiffs are relying on separate causes of action in the separate States and Territories where publication occurred. If the amendment had been made, the defence would have needed corresponding amendment in order to plead, by way of justification, truth and public benefit under s.6 of the Defamation Act 1901 (ACT). Truth alone (which is the defence presently pleaded) is not a justification for libel published in the Territory, although it is a complete defence in South Australia and those other parts of Australia where the common law on this issue survives. As a matter of convenience, argument on the application proceeded as if these amendments to the pleadings had been made.

8. It is unnecessary to set out in full the matter complained of. It is a newspaper editorial concerned with the action taken by the first plaintiff to terminate the manufacture in South Australia of agricultural machinery marketed under the name of John Shearer. The editorial mentions that agricultural machinery has been manufactured in Australia under that name for over 126 years and that the closure of the business brought about the loss of about 300 jobs in South Australia. The editorial further mentions that the first plaintiff has received considerable financial assistance from the Federal Government and the South Australian Government. There is reference also to an industrial dispute relating to compulsory unionism which was the subject of proceedings in the Industrial Relations Commission. Mention is made of the role of both plaintiffs in that dispute and in the proceedings before the Industrial Relations Commission. The editorial also mentions land owned by the first plaintiff at Kilkenny, which I gather is in South Australia, and the editorial makes the point that the land could have been sold in order to avoid closure of the manufacturing business and to save jobs. Paragraph 5 of the statement of claim alleges the following imputations or defamatory meanings:

"(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. According to the affidavit of Kerry William Sullivan, the editor of The Sunday Mail, sworn 16 June 1989, there were 286,604 copies of the issue in question circulated in Australia. Well over 200,000 of those copies were circulated in the Adelaide metropolitan area and over 70,000 copies in the country areas of South Australia. Less than 2,000 copies were circulated in the rest of Australia, including the thirty-six copies in the Australian Capital Territory already referred to.

10. Counsel for the defendant reiterated what was said on the last occasion, namely that the defendant will require to call at the hearing a number of witnesses from South Australia, including persons who were at the time of the previous hearing employed by the defendant but who are no longer so employed and are not subject to its control in any way. Such persons, however, continue to live in Adelaide. Other witnesses on the staff of The Sunday Mail will need to be taken away from their normal duties to spend time in Canberra for the purpose of the hearing.

11. Counsel for the plaintiffs (particularly the corporate plaintiff) reiterate that the case has a national flavour as well as a South Australian one. In particular the plaintiffs wish to have their reputations vindicated in the National Capital so that the defendant's wrong-doing will receive the full light of exposure in the eyes of important and influential persons with a Canberra connection who may be taken to be included in the readership of The Sunday Mail. However, whilst there was evidence that the plaintiffs were known to such persons at the time of publication, there is no direct evidence that those persons were included in the readership, and no inference to that effect is apparent to me. Possibly the plaintiffs would wish to argue at the hearing that persons of this nature were likely to read the copies of The Sunday Mail that went to the National Library and the Parliamentary Library or to hear from others about what was published. It is impossible to predict the strength of such evidence or arguments as may be presented at the trial.

12. On the last occasion I remarked that the competing demands of the right of the plaintiffs to maintain an action in this Court for a tort committed in the Australian Capital Territory on the one hand, and of the interest of the defendant in having the case conducted at less inconvenience and at less cost to it in South Australia on the other hand, did not result in a conclusion that the interests of justice would be served by transferring the proceedings to South Australia. I pointed out that it might nevertheless emerge at some stage in the proceedings that the interests of justice would be served by transferring the case to South Australia. I drew attention in particular to the ambiguous nature of the statement of claim and also pointed out that it would not be possible to predict with confidence the nature of the evidence to be called until after a defence had been filed and issue joined.

13. Although the statement of claim has not been amended, it is clear that the issues for trial on the question of liability will relate to the truth of the matter complained of and the conduct and belief of the defendant at the time of publication. I leave aside for the moment the question of publication for the public benefit. The defendant has now established a clear need to bring witnesses from Adelaide for the hearing, the likely disruption to the defendant's business as a result and the undoubted extra cost which will be incurred by the defendant in having to conduct the case in Canberra rather than in Adelaide. The plaintiffs, on the other hand, have not positively asserted or demonstrated a need to call any evidence from witnesses resident or located in Canberra. Some of the important and influential acquaintances referred to appear to be Canberra based, others not. Which, if any, the plaintiffs contemplate calling, is not clear.

14. The plaintiffs relied substantially on their right to maintain the action in a court which had jurisdiction to entertain it. It was further submitted that that right is reinforced by the forensic advantage which the plaintiffs enjoy under the substantive law of the Australian Capital Territory. That advantage was said to lie in the inability of the defendant to rely on truth as a complete defence under the law of the Territory and in the requirement that the defendant support the plea of justification by showing not only that the imputations relied upon were true, but that they were published for the public benefit. In my view, however, if there ever was such an advantage, it has been brought to an end by the decision of the High Court in McKain v. R.W. Miller and Company (South Australia) Pty. Limited [1991] HCA 56; (1991) 174 CLR 1, the effect of which is that in an action for tort in one State or Territory in Australia, the court will, subject to flexible exceptions, apply the substantive law of the place where the wrong occurred. Accordingly, although the plaintiffs bring their action in the Australian Capital Territory relying on publication within the Territory to found jurisdiction, and seek to recover damages in respect of every jurisdiction in which publication or re-publication occurred, the ACT court is required to apply the law of the State or Territory of publication in order to decide whether the plaintiffs may recover damages for the wrong done there. (The choice of law as to quantum of damages is another matter and does not need consideration here.) The result so expressed is, in my view, consistent with the decision of Hunt J in Toomey v. Mirror Newspapers Ltd (1985) 1 NSWLR 173, which has been followed in this Court on many occasions: Waterhouse v. Australian Broadcasting Commission (1989) 86 ACTR 1 (Kelly J), Gutman v. Clouston (unreported, Supreme Court of the ACT, Gallop J, 13 July 1989), Baffsky v. John Fairfax and Sons Limited (unreported, Supreme Court of the ACT, Higgins J, 20 September 1990). The doubt expressed by Gummow J in the Full Court of the Federal Court of Australia in David Syme and Co. Ltd. v. Grey (unreported, 24 September 1992) as to the correctness of the reasoning in Toomey, does not, in my view, bear on the present case. I conclude that the plaintiffs enjoy no forensic advantage by suing in this Court. If they sued in any court of a State or Territory in Australia in which publication occurred, the principles upon which the defendant would be held liable in damages (whatever the quantum) would be the same as those applied in this Court.

15. The trend of decisions in applications to transfer under sub-para.5(2)(iii) of the Cross-vesting Act appears to facilitate rather than obstruct transfer. I do not think that a discussion of the cases is necessary. I do think that it was intended that an application for transfer under the Cross-vesting Act should be dealt with expeditiously and cheaply, without the need for discussion on each and every occasion of the underlying philosophy or the nature of the federal compact and without the need for the development or consideration of a body of case law. The applicant does not have to show that justice cannot be obtained in the court in which the proceedings commenced, nor that the court to which transfer is sought is the only court in Australia in which justice may be obtained. The applicant bears no onus. The Court may order the transfer on its own motion, without an application by any party: s.5(7). Moreover the decision whether or not to transfer the proceedings, although appearing at first to be in the nature of a discretion, is on close analysis not so. The court considering the question has to make a value judgment on whether it is in the interests of justice that the proceeding be decided by the court of another State or Territory. If the court, after taking such matters as it considers relevant into consideration, makes the decision that the transfer is in the interests of justice, there is no option: the court must transfer the proceeding. Furthermore, the decision is unappellable whether it be to grant or to refuse transfer: para. 13(a).

16. Comparative cost is a matter to take into consideration when deciding whether a transfer is in the interests of justice. Increased cost to the defendant in maintaining the proceedings in the court in which they were commenced, where there is no discernible advantage to the plaintiff, has been regarded as a factor favouring transfer in the interests of justice: Waterhouse v. Australian Broadcasting Commission, Laing-Peach v. Cairns Post Pty. Ltd. (unreported, Hunt J, 20 October 1989). Where the increased cost was small in proportion to the overall costs and potential damages, it was considered that transfer was not in the interests of justice: Baffsky v. John Fairfax and Sons Limited.

17. I note that the first of the defamatory meanings relied upon by the plaintiffs is that the defendant alleged them to be "guilty of disloyalty to the State of South Australia". Disloyalty to the State of South Australia is a concept with which I am unfamiliar and I would have great difficulty in deciding any issue relating to that alleged imputation. I expect that other Judges of this Court would have similar difficulty. The court which is the judicial arm of government of the State of South Australia might not have that difficulty.

18. I am persuaded that the disadvantage to the defendant in allowing the present proceedings to remain in this Court substantially outweighs any advantage to the plaintiffs. In my opinion, it is in the interests of justice that the issue raised in the case be considered and determined by the Supreme Court of South Australia. Being of that opinion, I am bound to order the transfer of proceedings to the Supreme Court of South Australia. I so order.

19. Unless the parties wish to be heard, I propose to order that costs of the motion be costs in the cause.