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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Practice and Procedure - Service and execution of process - Action commenced in Supreme Court of Australian Capital Territory for damages for defamation arising from publication of newspaper in the Australian Capital Territory and throughout Australia - Defendant not present in the Australian Capital Territory - Service effected in Victoria - Plaintiff granted leave to proceed under s.11(1)(d) of Service and Execution of Process Act 1901 (Cth) - Appeal - Whether acts for which damages sought to be recovered were done within the Australian Capital Territory - Whether plaintiff may rely on acts of publication outside the Australian Capital Territory "as matters going only to damages and not as separate causes of action" - Discussion of jurisdiction, choice of law rules and cross-vesting legislation - Need for simple and universal system of service and execution of process throughout Australia emphasised.Service and Execution of Process Act 1901 (Cth), ss.4, 5, 11(1)(d)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s.11
Supreme Court Act 1933 (ACT.), s.11
Rules of the Supreme Court of the Australian Capital Territory, O.4, r.8; O.78, r.6
Flaherty v. Girgis (1987) 162 CLR 547
Cotter v. Workman (1972) 20 FLR 318
Seymour-Smith v. Electricity Trust of South Australia (1989) 17 NSWLR 648
The Siskina (1979) AC 210
Toomey v. Mirror Newspapers Ltd (1985) 1 NSWLR 173
McLean v. David Syme and Co. Ltd (1970) 72 SR (N.S.W.) 513
Tricon Industries Pty Ltd v. Abel Lemon and Company Pty Ltd (1988) 2 Qd R 464
McKain v. R.W. Miller and Co. (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1
HEARING
CANBERRA Counsel for the Applicant,: Mr G. Uren QC and
Appellant Mr R.L. Crowe
Solicitors for the Applicant,: Minter EllisonAppellant
Counsel for the Respondent: Ms R.S. McColl
Solicitors for the Respondent: Phillips Fox
ORDER
THE COURT ORDERS THAT:Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
1. Leave be granted to David Syme and Co. Limited (Receiver and
Manager Appointed) ("the appellant") to appeal from the
judgment of the Supreme Court of the Australian Capital
Territory given on 6 March 1992.
2. The appeal be allowed.
3. The judgment of the Supreme Court of the Australian Capital
Territory be set aside and in lieu thereof it be ordered
that -
(1) The respondent's motion notice of which was given on 6
August 1991 be dismissed;
(2) The motion on behalf of the appellant notice of which
was given on 22 July 1991 be allowed and all further
proceedings in the action be stayed with liberty to
the respondent, if so advised, to apply to the Supreme
Court of the Australian Capital Territory to amend the
indorsement on the writ of summons to confine the acts
of publication complained of to those done in the
Australian Capital Territory; and
(3) The respondent pay the appellant's costs of both motions.
4. The matter be remitted to the Supreme Court of the
Australian Capital Territory to hear and determine any such
application by the respondent and any consequential
application by the respondent for liberty to proceed in the
action pursuant to s.11 of the Service and Execution of
Process Act 1901.
5. The respondent pay the appellant's costs of the application
for leave to appeal and of the appeal.
DECISION
David Syme and Co. Limited (Receiver and Manager Appointed) ("Syme") has applied to this Court pursuant to s.24(1A) of the Federal Court of Australia Act 1976 (Cth) for leave to appeal from the interlocutory judgment of the Supreme Court of the Australian Capital Territory (Miles C.J.) given on 6 March 1992 in an action pending in that Court in which Anthony John Earl Grey, the respondent, is the plaintiff and Syme is the defendant. The Supreme Court ordered, pursuant to s.11 of the Service and Execution of Process Act 1901 (Cth), that the respondent be at liberty to proceed in the action subject to certain conditions as to its future conduct.2. The action was commenced by writ of summons issued on 17 June 1991. The Rules of the Supreme Court of the Australian Capital Territory provide that a writ of summons is to be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action (O.3, r.1(1)). It is not necessary to obtain the leave of the Court or Judge to issue any writ of summons for service within the Commonwealth (O.3, r.1(2)). The indorsement of claim is to be made on every writ of summons before it is issued, and is to contain a statement sufficient to give notice of the nature of the claim and the cause thereof and of the relief or remedy required in the action (O.4, r.1). It is, however, not necessary to set forth the precise ground of complaint or the precise remedy or relief to which the plaintiff considers himself entitled (O.4, r.2). In actions for libel the indorsement is to state sufficient particulars to identify the publications in respect of which the action is brought (O.4, r.8).
3. The respondent's claim, as indorsed on the writ, is for damages for the publication by Syme of defamatory material of and concerning the respondent in a cartoon which appeared in "The Age" newspaper on 7 May 1991. The content of the matter alleged to be defamatory of the respondent is set out in a schedule to the writ. It is not necessary for present purposes to refer further to that material. It is, however, important to notice that the indorsement on the writ of the respondent's claim includes a statement that the defamatory material was published by Syme "in the Australian Capital Territory and throughout Australia". That statement lacks precision. It may be taken to allege publication in each of the States and the Northern Territory as well as publication in the Australian Capital Territory. It may also encompass publication in each of the external territories of the Commonwealth.
4. It is common ground that Syme is not present, and does not carry on business, in the Australian Capital Territory. In order, therefore, that the respondent might take advantage of the provisions of the Service and Execution of Process Act, the writ was indorsed that it was to be served out of the Australian Capital Territory and in the State of Victoria. For the purposes of that Act, the Supreme Court of the Australian Capital Territory is a Court of Record of a part of the Commonwealth.
5. No appearance to the writ has been entered on behalf of Syme. A statement of claim has not been delivered on behalf of the respondent.
6. On 22 July 1991, Syme, following the procedure approved in Flaherty v. Girgis [1987] HCA 17; (1987) 162 CLR 574, gave notice that the Supreme Court would be moved for an order that all further proceedings in the action be stayed. The ground of that application was that the action was not one in respect of which liberty to proceed might be granted under s.11(1) of the Service and Execution of Process Act.
7. On 6 August 1991, the respondent gave notice that the Supreme Court would be moved for an order that, in the absence of an appearance by Syme, he be at liberty to proceed in the action pursuant to s.11(1) of that Act.
8. It was upon the hearing of those motions that the Supreme Court made the orders in respect of which Syme now seeks leave to appeal. When that application was called on for hearing, the Court decided to hear full argument on the substantive issues that would arise on the hearing of the appeal if leave were granted, reserving the question whether the case was a proper one in which to grant such leave.
9. The relevant provisions of the Service and Execution of Process Act are
contained in Division 1 of Part II. That Division relevantly
provides:
"4. (1) A writ of summons issued out of or requiring the10. The matter has proceeded on the basis that the only ground upon which the respondent could have been granted liberty to proceed under the Service and Execution of Process Act is that provided in s.11(1)(d) of that Act. It is not disputed that it was for the respondent to show that the case falls within that provision: Victorian Broadcasting Network Ltd v. Whitlam [1980] FCA 34; (1980) 42 FLR 256 at p 261.
defendant to appear at any Court of Record of a State or part of
the Commonwealth may be served on the defendant in any other State
or part of the Commonwealth.
(2) Subject to any rules of court that may be made under
this Act, the service under this section of a writ of summons may
be effected -
(a) in the same manner as if the writ were served on the
defendant in the State or part of the Commonwealth in
which the writ was issued; or
(b) without limiting the generality of the foregoing,
where the writ of summons is to be served in a State
or Territory on a corporation that -
(i) is incorporated under a law in force in that
State or Territory relating to companies; or
(ii) is a foreign company for the purposes of, and is
registered as such a company under, such a law
of that State or Territory,
by leaving at, or by sending by post to, the place
that is, for the purposes of that law, the registered
office of the corporation the writ of summons or a
copy of the writ of summons.
5. (1) Every writ of summons for service under this Act out
of the State or part of the Commonwealth in which it was issued
shall, in addition to any other indorsement or notice required by
the law of such State or part of the Commonwealth, have indorsed
thereon a notice to the following effect (that is to say):-
'This summons (or as the case may be) is to be
served out of the State (or as the case may be) of
and in the State (or as the case may be) of'.
(2) Every such writ of summons to which, by the law of such
State or part, an appearance is required to be entered, shall have
indorsed thereon a notice to the following effect (that is to
say):-
'Your appearance to this summons (or as the case may
be) must give an address at some place within 10
kilometres of the office of the Court of
at at which address proceedings and notices
for you may be left.'
(3) Every writ of summons for service under this Act shall
also contain or have indorsed thereon or annexed thereto a short
statement of the nature of the claim made or the relief sought by
the plaintiff in the suit, and if the plaintiff sues in a
representative capacity shall also state such capacity.
....
11. (1) When no appearance is entered or made by a defendant
to a writ of summons served on him under this Act, if it is made
to appear to the Court from which the writ was issued or a Judge
thereof -
(a) that the subject-matter of the suit so far as it
concerns such defendant is -
(1) land or other property situate or being within
the State or part of the Commonwealth in which
the writ was issued; or
(2) shares or stock of a corporation or company
having its principal place of business within
that State or part; or
(3) any deed, will, document, or thing affecting any
such land, shares, stock, or property; or
(b) that any contract in respect of which relief is sought
in the suit against such defendant by way of
enforcing, rescinding, dissolving, annulling, or
otherwise affecting such contract, or by way of
recovering damages or other remedy against such
defendant for a breach thereof, was made or entered
into within that State or part; or
(c) that the relief sought against the defendant is in
respect of a breach, within that State or part, of a
contract wherever made; or
(d) that any act or thing sought to be restrained or
removed, or for which damages are sought to be
recovered, was done or is to be done or is situate
within that State or part; or
(e) that at the time when the liability sought to be
enforced against the defendant arose he was within
that State or part; or
(f) in a matrimonial cause -
(i) that the domicile of the person against whom any
relief is sought is within that State or part;
or
(ii) that the proceedings were instituted under the
Matrimonial Causes Act 1959-1973,
and if one of the following is also made to appear to such Court
or Judge:
(g) that the writ was personally served on the defendant;
or in the case of a corporation served on its
principal officer or manager or secretary within the
State or part in which service is effected;
(h) that reasonable efforts were made to effect personal
service thereof on the defendant, and that it came to
his knowledge or in the case of a corporation that it
came to the knowledge of such officer as aforesaid (in
which case it shall be deemed to have been served on
the defendant); or
(i) that, in a case where the defendant is a corporation
that -
(i) is incorporated under a law in force in a State
or Territory relating to companies; or
(ii) is a foreign company for the purposes of, and is
registered as such a company under such a law,
service of the writ was effected in the manner
specified in paragraph (b) of subsection (2) of
section 4,
such Court or Judge may on the application of the plaintiff order
from time to time that the plaintiff shall be at liberty to
proceed in the suit in such manner and subject to such conditions
as such Court or Judge may deem fit, and thereupon the plaintiff
may proceed in the suit against such defendant accordingly.
(2) Any such order may be rescinded or set aside or amended
on the application of the defendant.
....
13. This Part does not confer on any Court jurisdiction to
hear or determine any suit which it would not have jurisdiction to
hear and determine if the writ of summons had been served within
the State or part of the Commonwealth in which the writ was issued."
11. It must also be accepted that it is not permissible to grant liberty to proceed under s.11 in respect of an action which includes a multiplicity of claims unless each of those claims falls within one or other of the sub-paragraphs of s.11(1). To sustain the correctness of that proposition it is sufficient to refer to Siskina (Cargo Owners) v. Distos Compania Naviera S.A (1979) AC 210, Tricon Industries Pty Ltd v. Abel Lemon and Co. Pty Ltd (1988) 2 Qd R 464 and Flaherty v. Girgis (supra) at p 591.
12. In the case of a newspaper, there is, at common law and thus under the
law of the Australian Capital Territory, a separate publication
to each person
to whom the newspaper is delivered by the publisher and it is the act of
publication which constitutes the cause of
action. But, as Mason and Manning
J.J.A. observed in McLean v. David Syme and Co. Ltd (1970) 72 SR (N.S.W.) 513
at p 528 -
".... it has not been the practice in actions of defamationIn that case no question arose similar to that with which the present proceeding is concerned. In considering such a case as the present, however, the circumstance that actions for damages for defamation arising out of the publication of an issue of a newspaper have been dealt with in that way cannot be allowed to disguise the fact that the plaintiff in such a proceeding is essentially suing upon a multiplicity of causes of action. That has particular consequences for the purposes of s.11 of the Service and Execution of Process Act.
arising out of the publication of an issue of a newspaper that the
plaintiff should plead and prove each separate publication of the
newspaper. Defamation actions of this kind have been dealt with
on the footing that the plaintiff may recover damages in respect
of the entire issue of a newspaper so long as he proves a
publication on one occasion, notwithstanding that there may be
multiple publications."
13. The indorsement on the writ to which reference has already been made is, in my opinion, capable only of the meaning that the respondent was identifying, as the wrongful acts for which he sought to recover damages, the acts of publication of the newspaper in the Australian Capital Territory, the respective States and the Northern Territory and, possibly, elsewhere. The claim for damages based upon the acts of publication within the Australian Capital Territory is clearly a claim within the jurisdiction conferred on the Supreme Court of the Australian Capital Territory by the Supreme Court Act 1933 (ACT.), formerly the Australian Capital Territory Supreme Court Act 1933 (Cth), and a claim falling within s.11(1)(d) of the Service and Execution of Process Act. The claims for damages based upon the acts of publication done outside the Australian Capital Territory are, equally clearly, claims which do not fall within that paragraph or, indeed, any other paragraph of that subsection.
14. It follows, in my opinion, applying the principles to which I have referred, that it was not permissible for the respondent to be granted leave to proceed in the action under s.11 of the Service and Execution of Process Act.
15. The respondent sought to avoid that consequence by saying, initially in correspondence and later before the Supreme Court, that he relied "on publication in each of the States and in the Northern Territory as matters going only to damages and not as separate causes of action". That statement is, in my opinion, inconsistent with the plain meaning of the indorsement on the writ which is not capable of being confined in its meaning by reference to such particulars as the respondent may have provided. But, to read the indorsement in the manner contended for would not, in my opinion, avail the respondent. That is because a claim so made must, as it seems to me, identify the acts of publication in respect of which damages are sought as acts done outside the Australian Capital Territory and, therefore, acts falling outside the purview of s.11(1)(d) of the Service and Execution of Process Act. If the cause of action upon which the respondent sues is confined to publication in the Australian Capital Territory, the damages recoverable by the respondent will be confined to the injury suffered as a consequence of that publication. I leave aside, as having no relevance to the present case, the question whether, in a true case of republication, the damages arising from such republication might also be recovered in such an action.
16. Counsel for the respondent sought support in the decision of Hunt J. in Toomey v. Mirror Newspapers Ltd (1985) 1 NSWLR 173 for the proposition that, in an action based solely on publication in the Australian Capital Territory, damages could be recovered in respect of publication in other parts of Australia. In my opinion, however, that decision does not support the respondent's contention. The defendant in that case carried on business in New South Wales and was, thus, clearly amenable to the jurisdiction of the Supreme Court of that State both as to local and extraterritorial torts. It was unnecessary for the Court to consider, as is required by s.11(1)(d) of the Service and Execution of Process Act, whether the acts of publication for which damages were sought were done within or outside the jurisdiction.
17. Notwithstanding that counsel for the respondent had earlier stated categorically that the respondent "did not seek to press a case based upon the broad parameters of the indorsement upon the writ", she nevertheless sought to rely, presumably on the basis that the respondent is suing upon the separate causes of action arising from publication of the newspaper outside the Australian Capital Territory, on the provisions of the various statutes of the Commonwealth, the States and the Northern Territory which may compendiously be referred to as the cross-vesting legislation. It was submitted that that legislation confers jurisdiction on the Supreme Court of the Australian Capital Territory in respect of those causes of action and that, by reason of that legislation, service of a writ of summons involving that jurisdiction might be effected outside the Australian Capital Territory without leave of the Supreme Court of that Territory notwithstanding the provisions of O.78, rr.6.03 and 6.04 of the Rules of that Court.
18. An answer to this submission is that the case has proceeded from its commencement as one in which the respondent chose to proceed not under the cross-vesting legislation but under the Service and Execution of Process Act. Had the respondent proceeded under the cross-vesting legislation, it would have been necessary to apply for leave to serve the writ out of the Australian Capital Territory under O.78, r.6.03, leave which would have been granted only if the Supreme Court was satisfied that that Court is an appropriate court to determine the proceedings: O.78, r.6.03. More fundamentally, however, the cross-vesting legislation does not, in my opinion, have the effect for which counsel for the respondent contended. In particular, that legislation, although conferring additional jurisdiction on, for example, the Supreme Court of the Australian Capital Territory, does not relieve a person seeking to invoke that jurisdiction from complying with the rules of court regulating the manner in which the jurisdiction is to be invoked or exercised. I agree with what Gummow J. has written in relation to this subject in the judgment about to be delivered by his Honour.
19. In my opinion, leave should be granted to Syme to appeal from the
judgment of the Supreme Court given on 6 March 1992. The appeal
should be
allowed, the judgment of the Supreme Court should be set aside and in lieu
thereof it should be ordered that -
(1) The respondent's motion notice of which was given on 620. It should be further ordered that the matter be remitted to the Supreme Court to hear and determine any such application by the respondent and any consequential application by the respondent for liberty to proceed in the action pursuant to s.11 of the Service and Execution of Process Act. The respondent should be ordered to pay Syme's costs of the application for leave to appeal and of the appeal.
August 1991 be dismissed;
(2) The motion on behalf of Syme notice of which was given on 22
July 1991 be allowed and all further proceedings in the
action be stayed with liberty to the respondent, if so
advised, to apply to the Supreme Court to amend the
indorsement on the writ of summons to confine the acts of
publication complained of to those done within the
Australian Capital Territory; and
(3) The respondent pay Syme's costs of both motions.
On 17 June 1991 a Writ of Summons issued out of the Supreme Court of the
Australian Capital Territory ("the Territory"). The writ
was addressed to:-
"DAVID SYME and CO LIMITED (Receiver and Manager appointed) whose2. The writ bore the indorsement required by s. 5 of the Service and Execution of Process Act 1901 ("the Service Act"). It stated that service was to be effected in the State of Victoria. Both parties accept that the Supreme Court of the Territory is a "Court of Record of . . part of the Commonwealth" within the meaning of sub-s. 4(1) of the Service Act.
registered office is 250 Spencer Street, Melbourne in the State of
Victoria"
3. Under the heading "ENDORSEMENT" there appeared the following:
"The plaintiff's claim is for:1933."
(1) Damages for the publication of defamatory material of
and concerning the plaintiff by the defendant in a newspaper
cartoon which appeared in "The Age" newspaper on Tuesday, 7
May 1991 as set out in the attached schedule hereto marked
"A".
The said defamatory material was published by the defendant
in the Australian Capital Territory and throughout
Australia.
AND the plaintiff claims damages costs and interest pursuant to
Section 53A of the Australian Capital Territory Supreme Court Act
"THE BRIAN BURKE STAMP COLLECTION COMMEMORATING GREATThe Rules of the Supreme Court the Australian Capital Territory ("the Territory Rules") require that in actions for libel the endorsement state "sufficient particulars in respect of which the action is brought": O. 4 r. 8.
ENTREPRENEURS WHO GAVE WITH NO EXPECTATION OF INFLUENCING
GOVERNMENT POLICY."
4. A copy of the writ was served on the defendant, the present appellant, at its registered office in Melbourne. It is common ground that the defendant is not present and does not carry on business in the Territory. It is also accepted, at this stage of the action, that the issue of "The Age" newspaper bearing the date 7 May 1991 was, on or about that date, published both in the Territory and in the States and other Territories.
5. The appellant applied for a stay of the proceeding and the plaintiff, the present respondent, sought leave to proceed under sub-s. 11(1) of the Service Act. This form of procedure, whilst questioned in the past, now has the approval of the High Court: Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574 at 583-587, 601, 610.
6. On 6 March 1992 Miles C.J. granted liberty to the respondent to proceed in the action upon certain terms. These included the filing and service of a statement of claim within 21 days and the provision of further and better particulars of it within 21 days of any request. The first of these steps has not been taken, we were told, because on 26 March 1992 the appellant filed the present application for leave to appeal.
7. In my view, leave to appeal should be granted and the draft Notice of Appeal annexed to the affidavit of Mr R P Clynes sworn 26 March 1992 should stand as the Notice of Appeal. Important issues arise as to the construction of section 11 of the Service Act, and certain provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ("the Cross-vesting Act"). These questions go to the extent and nature of the jurisdiction of the Supreme Court of the Territory in an action in which the plaintiff complains of the alleged publication by a defendant who cannot be served in the Territory, of the same defamatory material both within the Territory and elsewhere in Australia.
8. Isaacs J described "jurisdiction" as a generic term: Baxter v
Commissioner of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087 at 1142. This appeal
demonstrates the accuracy of that remark. It involves the use of the term
"jurisdiction" in several senses.
The specific issues on the appeal are to be
appreciated only if seen in the very complex context in which they appear.
This must
be outlined at some length.
"Jurisdiction", "Choice of Law" and "Cross-Vesting"
9. The term "inherent jurisdiction" is often used, for example in relation to
the granting of permanent stays for abuse of process,
to describe what in
truth is the power of a court to make orders of a particular description:
Williams v Spautz [1992] HCA 34; (1992) 107 ALR 635 at 640. More accurately, "jurisdiction"
may be used to identify the amenability of the defendant to the court's writ,
or the subject
matter of actions entertained by the court. This latter
distinction was drawn by Mason A.C.J., Wilson and Dawson JJ. in Flaherty
v
Girgis, supra at 598.
10. Their Honours said:-
"It is true to say, as was said by this Court in Laurie v CarrollSee also the manner in which the distinction was drawn by Gibbs C.J. in Weber v Aidone (1981) 36 ALR 345 at 347.
(1958) 98 CLR at 322, that where an action is in personam and
transitory, the jurisdiction of a court of unlimited jurisdiction
does not depend upon subject-matter but upon the amenability of
the defendant to the writ expressing the Sovereign's command. At
common law the writ does not run beyond the limits of the State.
If extraterritorial service is permitted the territorial
jurisdiction of the court is extended. But there is a distinction
to be drawn between territorial jurisdiction and jurisdiction over
the subject-matter of the action, the latter being determined
otherwise than by the rules governing service. The distinction is
recognised in Section 13 of the Service and Execution of Process
Act which provides that Pt II of that Act does not confer on any
court jurisdiction to hear or determine any suit which it would
not have jurisdiction to hear and determine if the writ of summons
had been served within the State or part of the Commonwealth in
which it was issued."
11. Whilst a distinction thus may properly be made between the jurisdiction of a court to hear and determine a matter and a power to grant relief of a particular kind, in some cases where statutory rights and obligations are involved the grant of jurisdiction is not "self contained". Section 163A of the Trade Practices Act 1974 ("the TP Act") is an example. There, jurisdiction is conferred upon this Court in classes of matter arising under the TP Act which are defined by the particular species of relief sought in the proceeding, namely, declaration, prohibition, certiorari or mandamus; cf Thomson Australian Holdings Proprietary Limited v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 at 161-2, Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1988) 19 FCR 469 at 473-4. Again, and this is true particularly of laws made by the Parliament, legislation may in the one breath both create rights or liabilities and invest jurisdiction to enforce them. Arnotts Limited v Trade Practices Commission (No. 1) (1989) 21 FCR 297 at 303-4, a case concerned with s. 157 of the TP Act, is a recent example of the operation of a law with such a double character.
12. The distinction between jurisdiction in the sense of effective service upon a defendant, and jurisdiction in the sense of entertainment of disputes as to particular subject matter (the resolution of which may call for the application of the common law choice of law rules), may be confounded by the terms of statutes providing for "long-arm" service upon defendants. Such statutes may select for "long-arm" service criteria which fix upon the nature of the subject matter of the dispute, as well as the location of the party to be served. Section 11 of the Service Act is an example. Thus agility is necessary when considering issues said to go to "jurisdiction".
13. One issue which arises in the present case concerns the proper
construction of s. 11 of the Service Act. Subsection 11(1) relevantly
provides in this case that the Supreme Court of the Territory or a Judge
thereof may on the application of the respondent order that
the respondent be
at liberty to proceed, if it has been made to appear to that Court or Judge
that the applicable conditions set
out in the subsection are satisfied. The
immediate question is whether it did properly appear to Miles C.J., in the
terms of para.
11(1)(d): -
"that any act or thing sought to be restrained or removed, or forThe answer depends partly on the construction of the "Endorsement" to the Writ of Summons and partly on the correct construction of para. (d), particularly in the light of the acceptance in Flaherty v Girgis, supra at 590 - 591, of certain observations of Lord Diplock in The Siskina (1979) AC 210 at 254.
which damages are sought to be recovered, was done or is to be
done or is situate within that State or part (of the Commonwealth)."
14. The Service Act does not, as the High Court emphasised in the passage I have set out above from Flaherty v Girgis, deal with jurisdiction in the sense of supplying "jurisdiction over the subject matter of the action". Their Honours (Mason A.C.J., Wilson Dawson JJ.) were dealing with the operation of the Service Act in State courts. They pointed out (at 598), whilst the determination of any question under the Service Act regarding service involves the exercise of federal jurisdiction, jurisdiction over the subject matter of the action will be federal jurisdiction only if the authority of the court to decide the matter, questions of service apart, is derived from federal law. It will be necessary to return later to the significance in this area of federal jurisdiction, and to the special position of the Supreme Court of the Territory.
15. In respect of any claim for damages for commission of the tort of defamation outside the Territory, the exercise of the general jurisdiction of the Supreme Court conferred by s. 11 of the Australian Capital Territory Supreme Court Act 1933 ("the Supreme Court Act") involves, in a case such as the present, the operation of the common law rules of choice of law for the selection of the connecting factors which determine the lex causae in actions for extraterritorial torts. In Australia, since McKain v R W Miller and Co (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1, the applicable choice of law rule is that in Phillips v Eyre (1870) LR 6 QB 1, as reformulated by Brennan, Dawson, Toohey and McHugh JJ. at 39-40. Section 118 of the Constitution does not deal with the matter. It may prevent the courts of one State from invoking public policy as justification for denying the application of the statute law of another or from refusing to apply the revenue or penal laws of another; see para. 3.10 of The Law Reform Commission Report No. 58, "Choice of Law", ("the Choice of Law Report").
16. With respect to an action to recover damages for a wrongful act brought otherwise than against a defendant to be served within the jurisdiction for wrongful acts wholly occurring within the jurisdiction, the necessity to "localize" the wrongful act may arise at two stages. The first is at the level of jurisdiction, in particular upon an application for leave to serve outside the jurisdiction of the forum in reliance upon the discretionary powers given the court by statute or the rules of court. The second stage involves the identification of the lex loci delicti for the operation of the choice of law rule in Phillips v Eyre.
17. There is no compelling reason to suppose that this process of
identification and localization is to be performed in the same
way in relation
to both jurisdiction and choice of law. The question whether a wrongful act
is localized within the forum so as
to permit the exercise of a discretion to
permit service of process outside the forum is different in character from the
question
of choice of law, in respect of torts committed outside the forum;
see Abbott-Smith v The Governors of University of Toronto (1964) 45 DLR (2d)
672 at 680, 694; Castel "Canadian Choice of Laws" 2nd ed, 1986, para. 477;
McLeod "The Conflict of Laws", 1983, p 98; S D Robb "The Tort
Rule of Private
International Law - The Chimera Incarnate?" [1977] SydLawRw 8; (1977) 8 Syd L Rev 146 at 149-151.
In Chesire and North "Private International Law", 11th ed, 1987, p 540, the
learned authors say:-
"It has always been questionable whether jurisdictionalOtherwise, as they point out, the choice of law rule will become unworkable because there will no single lex loci delicti upon which the choice of law rule is to operate.
cases should be used as authority in the choice of law
context. It should not be forgotten that a decision whether
to grant leave for service out of the jurisdiction is
discretionary. Furthermore, whilst a court may be prepared
to hold that a tort is committed in several places for the
purposes of a jurisdictional rule, it should insist on one
single locus delicti in the choice of law context."
18. The present case is not one where only some of the necessary elements for the cause of action in tort occurred within the Territory, the relevant issue of "The Age" having been published there. The dispute concerns the exercise of "long arm" jurisdiction where, as the appellant would have it, jurisdiction is invoked in respect of other torts, all committed outside the Territory.
19. On the present appeal there was debate as to the consistency with the principles I have outlined of the reasoning in Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173. The respondent, on one branch of its argument, contended that the only acts for which damages were sought to be recovered were acts done within the Territory, so that the subject matter of the proceeding fell squarely within para. 11(1)(d) of the Service Act. However, it was then submitted that, consistently with the rule in Phillips v Eyre and otherwise than by application of the republication doctrine, it would still be possible in assessing damages to take into account publication of the alleged defamation outside the Territory. In support of that position counsel relied upon Toomey's Case. It will be necessary to return to this submission later in these reasons.
20. The complexities do not end here. Brennan J pointed out in Flaherty v Girgis (at 600) that the principles of private international law which supply the lex causae in cases with a foreign element may themselves be modified by statute. The point was reiterated in McKain (at 35-36) by Brennan, Dawson, Toohey and McHugh JJ.
21. An example, of significance in the present litigation, is provided by
paras. 11(1)(b),(c) of the Cross-vesting Act. It is necessary to set out
sub-s. 11 (1) in full.
"11 (1) Where it appears to a court that the court will, or willThe reference in para. (b) to the "unwritten law" may be no more than surplusage, the Australian common law (including the rules of private international law) being in force in all the relevant jurisdictions. The point was noted by Samuels J.A. in Australian Broadcasting Corporation v Waterhouse (1991) Aust Torts Reports 81-147 at 69,450; cf at 69,463 per Priestley J.A. That was how, at the time of the establishment of the federation the matter was understood by Quick and Garran, with particular reference to the position to be taken by the High Court: "The Annotated Constitution of the Australian Common-wealth", 1900, p 785. That also was the way in which the matter was understood by Sir Owen Dixon; see, for example,Musgrave v The Commonwealth [1936] HCA 80; (1937) 57 CLR 514 at 547. The result is that within Australia conflicts of law arise between statutes or between the common law and statute.
be likely to, in determining a matter for determination in a
proceeding, be exercising jurisdiction conferred by this Act of 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."
22. However, the Cross-vesting Act extends to every external Territory (sub-s. 3(3)). The apparent assumption in sub-s. 11(1)(b) that the "unwritten law" may differ between States and Territories may be explained as designed to accommodate exceptional situations such as the preservation in the Territory of the Cocos (Keeling) Islands, of the institutions, customs and usages of the Malay residents; see Cocos (Keeling) Islands Act 1955, 18. The phrase "unwritten law" may also, as it transpires, accommodate the interests recognised in Mabo v Queensland [1992] HCA 23; (1992) 66 ALJR 408.
23. It will be necessary to return to s. 11 of the Cross-Vesting Act later in
these reasons. What is of immediate significance is that the effect of para.
(b), upon an action brought in the court of
one State or Territory for a tort
committed in a State or Territory where defamation law is statutory, is to
displace the operation
of the Rule in Phillips v Eyre. This is because the
court of the forum will be obliged by para. (b) to apply the written law of
that other State or Territory rather that the "double actionability" criteria
of Phillips v Eyre. That is the effect of the decision
of Hunt C.J. at CL in
Waterhouse v Australian Broad-casting Corporation (Supreme Court of New South
Wales, 7/2/92, unreported).
His Honour said:-
"So far as the right of action in defamation is concerned in each24. Further, and perhaps contrary to an assumption implicit in the above passage, the phrase in s. 11 "a right of action arising under a written law" may be of considerable width. It may include (i) an action which depends upon the written law for its enforcement even though not wholly owing its existence to the written law, and (ii) an action in which the defence against a common law liability or obligation is provided by the written law so that the determination of the action depends upon the operation of the written law, that law being the source of an alleged immunity to the liability or obligation alleged against the defendant; cf LNC Industries Limited v BMW (Australia) Limited [1983] HCA 31; (1983) 151 CLR 575 at 581.
of New South Wales, Queensland and Tasmania, it arises under a
written law . . . This State's common law choice of law rules
accordingly have no application to the plaintiff's claim in
relation to publications in Queensland or Tasmania, and the
defendant may plead in relation to such publications only the
defences available in such State or States.
The remaining rights of action claimed by the plaintiffs here
arise under the common law in each of the other Australian
jurisdictions. The decision in McKain's case therefore means that,
in relation to each of those other Australian jurisdictions, the
plaintiffs can succeed in this Court only if they would have
succeeded both in that jurisdiction and (if the publication had
occurred in New South Wales) in this State. The defendant is thus
entitled to rely upon any defences available either in this State
or in the jurisdiction in which the publication took place."
25. In McKain Mason C.J. (at 26) referred to s. 11 of the Cross-Vesting Act, but only on the footing that it did not apply to the instant case. The reason for this lay in the terms of the Cross-Vesting Act. It applies as between this Court, the Family Court of Australia and the Supreme Courts of the States and Territories. It is not addressed to causes removed into the High Court pursuant to s. 40 of the Judiciary Act 1903 ("the Judiciary Act"). McKain was such a cause. The jurisdiction of the Supreme Court of New South Wales became federal in nature upon the taking of the issue as to the operation of s. 118 of the Constitution. With the order of removal into the High Court, pursuant to s. 40 of the Judiciary Act, the Supreme Court was divested of the relevant federal jurisdiction; see NEC Information Systems Australia Pty Ltd v Lockhart (Full Court, 12 June 1992, unrep., pp 11-13).
26. The counsel for the respondent did not dispute the reasoning in the most recent Waterhouse case as to the effect of s. 11 of the Cross-Vesting Act upon choice of law rules. Rather, on one branch of the argument, she submitted that the Cross-Vesting Act, in conjunction with the State legislation operated of its own force to extend throughout Australia the territorial jurisdiction of the Supreme Court of the Territory. Therefore, it was submitted, the service in Victoria had been effective even if the circumstances did not fit within s. 11 of the Service Act. Reliance was placed upon the apparent acceptance in Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648 at 659-60 that the effect of the cross-vesting legislation is to confer not only "substantive jurisdiction" but also "procedural jurisdiction".
27. In response, counsel for the appellant pointed to O. 78 of the Territory
Rules. Order 78 r. 6.03 provides:-
"Proceedings may be served out of the jurisdiction with the leaveNo prior leave was sought in this case. Nor had there been a statement of claim expressly invoking cross-vesting jurisdiction, as required by rule 6.01. In answer, counsel contended that if the cross-vesting legislation had the effect for which she contended, O. 78 was otiose.
of the Court if the proceedings include a matter for determination
in respect of which jurisdiction under a cross-vesting law may be
invoked."
28. Plainly, on its face, O. 78 is designed to operate concurrently with the federal law contained in the Service Act. Within Australia one might have thought it desirable to have one "long-arm" statute dealing with service throughout the country and that the Service Act would supply that need. That has not proved to be the case. The Rules of the various State Supreme Courts extend their "long-arm" jurisdiction both within and outside Australia. These rules operate concurrently with the Service Act, which does not cover the relevant field. That is what was decided in Flaherty v Girgis supra.
29. The Supreme Court of the Territory has been in a different position. This has been the result of Cotter v Workman (1972) 20 FLR 318. Fox J there decided that s. 16 of the Supreme Court Act, which authorised service of writs out of the jurisdiction in the manner and to the extent provided by the Territory Rules did not, consistently with the limitation imposed by s. 122 of the Constitution, authorise O. 12 r. 1. In effect, this rule provided that writs issued out of the Supreme Court might be served anywhere in the Commonwealth, without leave and without restriction or qualification of subject matter. The rule was held to be invalid.
30. It should be noted that s. 48A of the ACT Supreme Court (Transfer) Act 1992, which commenced on 1 July 1992, states that the Supreme Court is to have all original and appellant jurisdiction "that is necessary for the administration of justice in the Territory". Thus, it remains a question whether the reasoning in Cotter v Workman now requires reconsideration.
31. If the submissions of counsel for the respondent which I have outlined above be accepted, in many instances in this country there may be now at least three applicable systems dealing with extraterritorial service inside Australia. That would be the result of acceptance of the submission that the cross-vesting legislation deals not only with jurisdiction in the substantive sense of subject matter but also with jurisdiction in the territorial sense.
32. In that regard I should note a further and alternative submission outlined by counsel for the appellant. In addition to pointing to non-compliance by the respondent with O. 78 as an answer to the attempt by the respondent to strike a root of extraterritorial jurisdiction in the cross-vesting legislation, counsel for the appellant submitted that the "jurisdiction" which is invested or conferred by that legislation is jurisdiction as to subject matter only. Service outside the territory of the particular "law-area" in which the proceeding is commenced must be effected under one of the other available regimes for effecting extra territorial service. Here, the only candidate was the Service Act and, in his submission, the respondent could not bring its case within the reach of that legislation.
33. It is unnecessary for the purposes of this appeal to consider whether the cross-vesting scheme established by Part 9 of the Corporations Act 1989 and ss. 220 and 363 thereof, together with the State legislation, provides the State courts with jurisdiction in the territorial sense as well as regards subject-matter.
34. The need for a simple and universal system of service and execution of process in Australia has for long been apparent. It certainly preceded federation. Section 15 of the Federal Council of Australasia Act 1885 (Imp) provided that the Federal Council should have legislative authority in respect of matters including: - "(d) The service of civil process of the courts of any colony within Her Majesty's possessions in Australasia out of the jurisdiction of the colony in which it is issued." Pursuant to that provision the Australasian Civil Process Act 1886 was passed. The High Court pointed out in Flaherty v Girgis (at 582) that this law provided for the service of process out of one colony and in another and, whilst not identical to Service Act, it was obviously its precursor. It was repealed, pursuant to covering cl. 7 of the Constitution, by s. 2 of the Service Act.
35. As disclosed by the above short consideration of the present position in this country, after nearly a century of legislative activity, any hope for easing the administration of justice by a single, universal and simple national system of extraterritorial service of process remains unfulfilled. Indeed, the cross-vesting scheme has introduced a further level of complexity to a situation that previously was by no means simple. For example, in the Supreme Court of the Territory leave is required before service outside the Territory of process in a proceeding in which the cross-vesting legislation is relied upon, whereas, whilst the Service Act has no such requirement, its practical operation is limited by s. 11.
36. (The present issue as to the effect of the service and execution of
process legislation may not recur if the Service and Execution
of Process Bill
1992 becomes law. It provides in cl. 15 that any initiating process issued in
a State (a term which is defined in
cl. 5 to include the Territory) may be
served in another State. Provision for the stay of proceedings so served is
made by cl. 20).
Federal Jurisdiction
37. There is one further source of complexity in this field. It flows from the terms of the Constitution itself. In McKain (at 35) Brennan, Dawson, Toohey and McHugh JJ. referred to additional questions for consideration by federal courts exercising Australia-wide jurisdiction and bound by s. 79 of the Judiciary Act. The laws of the States and Territories referred to in s. 79 include the common law or other rules of the State of Territory as to choice of law. Thus, in Musgrave v The Commonwealth [1936] HCA 80; (1937) 57 CLR 514, an action against the Commonwealth for libel committed in Queensland but brought in the original jurisdiction of the High Court and heard in Sydney, the law of New South Wales, including the rule in Phillips v Eyre, was applied: see at 532, 543, 547-8 and cf 551.
38. The introduction of the federal system in this country brought with it, as it had in the United States, a new notion of jurisdiction. A fresh source of sovereign authority came into being and with it the need to provide for the exercise of the judicial power which was an attribute of that sovereignty: Ah Yick v Lehmert [1905] HCA 22; (1905) 2 CLR 593 at 603. The nine heads of federal jurisdiction set out in ss. 75 and 76 of the Constitution include, as to some of them, subject matter (for example, controversies involving interpretation of the Constitution, including adjudication upon validity of legislative and executive acts) and, as to others, parties (for example, actions between States) all of which were unknown in the former colonies. Further, it became necessary to determine the source, as between the Commonwealth and the States, of authority to adjudicate in any particular case, particularly when State courts were invested with federal jurisdiction.
39. Hence the statement by Isaacs J in Baxter's Case supra at 1142:-
"State jurisdiction is the authority which State Courts possess toSee also Lorenzo v Carey [1921] HCA 58; (1921) 29 CLR 243 at 252, Anderson v Eric Anderson Radio and TV Pty Limited [1965] HCA 61; (1965) 114 CLR 20 at 44-5. The Territories stand in a different position, the courts of the Territories not being federal courts for the purposes of Chapter III of the Constitution and not exercising federal jurisdiction: Capital TV and Appliances Proprietary Limited v Falconer [1971] HCA 10; (1971) 125 CLR 591.
adjudicate under the State Constitution and laws; federal
jurisdiction is the authority to adjudicate derived from the
Commonwealth Constitution and laws.
The first is that which "belongs to" the State Courts within the
meaning sec. 77; the latter must be "vested in" them by
Parliament."
40. Service within Australia presents no difficulty in federal courts, whose process runs throughout the nation. Thus, s. 18 of the Federal Court of Australia Act 1976 ("the Federal Court Act") provides that the process of this Court runs throughout Australia and the Territories. Service of the process of federal courts outside Australia also may be provided for by legislation supported by s. 71 and para. 51 (xxxix) of the Constitution. For example, para. 59(2)(g) of the Federal Court Act provides for the making of Rules of Court in relation to the manner in which and the extent to which the process of the Court may be served out of the jurisdiction of the Court. In that provision the term "jurisdiction" in the phrase "out of the jurisdiction of the Court", is used in a territorial sense. The Service Act may be relied upon for service within Australia of process in proceedings in State courts exercising federal jurisdiction: Weber v Aidone supra at 347.
41. Laws made by the Parliament under ss. 76 and 77 of the Constitution by which it confers original jurisdiction on the High Court or defines the jurisdiction of some other federal court or invests State courts with federal jurisdiction, with respect to the matters in Chapter III of the Constitution, may refer to locality. Section 39 of the Judiciary Act is a prime example. But they need not do so, and ss. 76 and 77 of the Constitution themselves are concerned with the parties to or the subject matter of particular matters or controversies, rather than with jurisdiction in a "territorial" sense.
42. The point is of some importance for the present case, insofar as it is necessary to deal with the nature of the non-federal "jurisdiction" conferred by the cross-vesting legislation upon the Supreme Court of the Territory. The Supreme Court was not exercising any federal jurisdiction. The better view is that it was not doing so even to the limited extent flowing from the invocation by the respondent of the Service Act. This is because even when authority is conferred upon Territory courts to determine cases arising under legislation falling within a head of power in s. 51 of the Constitution, the source of that authority is found in s. 122, not s. 77 of the Constitution: Falconer, supra at 600, 609, 623-4. In any event, as I have indicated, the Service Act is not concerned with "substantive" as distinct from "territorial" jurisdiction: Flaherty v Girgis supra at 598.
43. The recognition and enforcement in the Supreme Court of the Territory of the extraterritorial rights of the respondent arising from the commission outside the Territory of the civil wrongs alleged by the respondent, flow from the general terms of the conferral of jurisdiction by the Supreme Court Act together with (as submitted on one branch of the case) the jurisdiction which results from the operation of the cross-vesting legislation. The primary questions with which this appeal is concerned involve "jurisdiction" not in terms of subject matter so much as in the territorial sense. But enough has already been said to indicate that the two, to an extent, are inter-twined.
44. It is now possible to deal directly with the particular issues on the
appeal.
The Service and Execution of Process Act 1901
45. The Australasian Civil Process Act 1886 provided in s. 8 for the granting
of liberty to proceed where it was made to appear to
the Supreme Court of the
Colony in which the writ was issued or to a judge thereof, inter alia:-
"8(4) That any act or thing sought to be restrained or removed, orThe similarity to para. 11(1)(d) of the Service Act is marked. Further paras. (1),(2),(3),(5) and (6) of s. 8 of the 1886 Act were followed respectively in paras. (a),(b),(c),(e) and (f) of sub-s. 11(1) of the Service Act.
for which damages are sought to be recovered, was done or is to be
done or is situate within that Colony."
46. The submissions as to the proper construction of para. (d) involve
reference to some of the preceding provisions of sub-s. 11(1).
These should
be set out in full:
"11(1) When no appearance is entered or made by a defendant to a47. Paragraph (d) has been considered in various decisions which are collected and discussed in paras. 123-126 of the Report No. 40 of The Law Reform Commission, entitled "Service and Execution of Process". The principal difficulty which is discussed in the cases concerns a wrongful act all the constituent elements of which did not occur in the State or Territory out of the courts of which the writ of summons was issued. As I have indicated, that is not the issue which arises in the present case. Undoubtedly the alleged defamation was published in the Territory. The issues with which cases such as Hall v Australian Capital Territory Electricity Authority (1980) 41 ALR 557 at 559-560 and Zappacosta v The Queanbeyan Bowling Club Ltd (Supreme Court of the Australian Capital Territory, Higgins J, 20/2/91, unreported) were concerned do not arise.
writ of summons served on him under this Act, if it is made to
appear to the Court from which the writ was issued or a Judge
thereof -
(a) that the subject-matter of the suit, so far as it
concerns such defendant is -
(1) land or other property situate or being within the
State or part of the Commonwealth in which the writ
was issued; or
(2) shares or stock of a corporation or company having
its principal place of business within that State or
part; or
(3) any deed, will, document, or thing affecting any
such land, shares, stock, or property; or
(b) that any contract in respect of which relief is sought
in the suit against such defendant by way of enforcing,
rescinding, dissolving, annulling, or otherwise affecting
such contract, or by way of recovering damages or other
remedy against such defendant for a breach thereof, was made
or entered into within that State or part; or
(c) that the relief sought against the defendant is in
respect of a breach, within that State or part, of a
contract wherever made; or
(d) that any act or thing sought to be restrained or
removed, or for which damages are sought to be recovered,
was done or is to be done or is situate within that State or
part; or
(e) ...or
(f) ..."
48. In particular, it is not necessary to determine whether it is sufficient to attract para. (1)(d) of the Service Act that any one act or omission which is a constituent element of a claim for damages takes place in the Territory, whether alone or in combination with other acts or omissions. The issue is whether para. (d) supplies sufficient footing for leave to proceed in respect of alleged wrongs committed wholly outside the Territory by a defendant who also is sued for a tort which does answer the description in para. (d).
49. The appellant submitted that leave to proceed cannot be given where the
writ includes a claim which does not fall within any
of the provisions of
sub-s. 11(1) of the Service Act. Counsel relied upon the reasoning of Lord
Diplock in The Siskina supra at
254-5. Their Lordships were dealing with RSC
O.11 r. 1 and with service of process out of the jurisdiction of the English
High Court
with the prior leave of the Court. Lord Diplock referred to such
provisions as conferring an "exorbitant" jurisdiction so that the
provisions
were to be strictly construed in favour of "the foreigner". His Lordship also
said, with reference to authority, that
it was well settled that it was not
permissible in any action commenced by service of process on a person out of
the jurisdiction
to litigate any claim that did not fall within one or other
of the heads in O. 11 r. 1. His Lordship described as "striking" two
cases,
Waterhouse v Reid (1938) 1 KB 743 and Total Oil Great Britain Ltd v Marbonanza
Compania Naviera SA (Court of Appeal, 27/6/75, unreported). He continued:-
"In each of them the plaintiff sought to rely upon certain factsLord Diplock's statement that O. 11 constituted an exception to the general rule as to territorial jurisdiction and that the exception is limited to the cases mentioned in that order, was referred to, in the course of a discussion of the provisions of the Service Act, with evident approval by Mason A.C.J., Wilson and Dawson JJ. in Flaherty v Girgis supra at 591.
as constituting in the alternative a breach of contract or a tort.
In the former the claim for damages for tort was within the
appropriate sub-rule dealing with torts, then numbered (ee), but
the claim for damages for breach of contract was not within the
appropriate sub-rule relating to actions founded on contract, then
numbered (e); in the latter the position was reversed, the claim
for damages for breach of contract fell within the appropriate
sub-rule; the claim for damages for tort did not. In both cases
it was held that the only action for which the High Court had
jurisdiction to give leave for service of its process out of the
jurisdiction was one confined to the particular cause of action
that did fall within a sub-rule of Ord. 11, r. 1(1)."
50. Some attempt was made to escape the inevitable result of the application of this reasoning to para. (d) by directing attention to the phrase therein "any act". It will be observed that in para (b) the phrase "any contract" is used. The respondent submitted that the force that the word "any" in para (d) was such that the paragraph was satisfied if any one of a number of acts for which damages were sought to be recovered was done within the Territory, in the same way that it was enough for para. (b) that any one of a number of contracts upon which action was brought by the writ was made or was entered into within the Territory.
51. The force of the presumption of construction in favour of "the foreigner" referred to The Siskina plainly cannot have the same force in construing s. 11. It is concerned with writs served in a State or Territory all of which are subject to the exercise of legislative power by the Parliament which made the law in question. Nevertheless, in my view, "any" is used in the section to identify any contract or wrongful act, provided only it has the characteristics described in the balance of the relevant paragraph. That is to say, any contract will suffice for para. (b), provided that the relief sought in respect of it is within the description in para. (b) and the contract itself was made or entered into within the Territory. The operation of para. (d) treats any wrongful act as sufficient provided it has the territorial connection spelt out in the balance of para. (d).
52. Support for this construction is provided by Tricon Industries Pty Ltd v Abel Lemon and Company Pty Ltd (1988) 2 QdR 464. Shepherdson J held that an originating process which contained a claim which fell within RSC O. 11 r. 1 (Q.) could not be served outside Queensland if it contained another claim which was not within the rule. Reliance was place upon the reasoning in The Siskina. The case concerned third party proceedings brought in contract and tort against a United States corporation. His Honour held that even if (contrary to his finding) the claim in tort fell within O. 11 r. 1, the claim in contract could not be joined with it, so as to obtain an order for service outside Queensland, unless it itself fell within the rule.
53. It follows that, subject to other arguments advanced by the respondent,
leave to proceed should not have been granted in respect
of the writ of
summons.
Toomey v Mirror Newspapers Ltd
54. However, counsel for the respondent submitted that she relied on publication in each of the States of Australian and in the Northern Territory "as matters going only to damages and not as separate causes of action". Therefore, it was said, the respondent's claim fell wholly within para. (d) of sub-s. 11(1) of the Service Act. (That submission was avowedly made in the alternative to the inconsistent submission, discussed earlier, relying upon the cross-vesting legislation. For that postulated distinct causes of action).
55. Two questions arise. The first is whether the Endorsement on the Writ issued 17 June 1991 is susceptible of the reading which the respondent would give it. The second concerns the nature of the rights which would be involved if such a reading were given the Endorsement.
56. I have earlier referred to the complexity that may arise from the use in "long arm" provisions such as para. (d), of criteria also found in the common law rules for choice of law. In the present case, if what would be involved would be the recognition and enforcement by the Supreme Court of what in Musgrave (supra at 547) Dixon J called "exterritorial rights" arising from the commission of civil wrongs outside the Territory, then the lex causae would be supplied by the common law rules of private international law (as restated in McKain). The position of the respondent would be no further advanced for the purposes of the present appeal.
57. Another possibility is that the assessment of damages by reference to publication outside the Territory, but without considering whether those damages would be recoverable under the law of the other jurisdictions, is an application of a principle that quantification of damages is a matter pertaining to remedy and governed by the law of the forum. But the modern view in Australia is that whilst computation of damages is a matter for the forum, heads of damage and other measures of damage are matters of substantive law, and thus for the lex causae: Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 at 79, Sykes and Pryles "Australian Private International Law" 3rd ed., 1991, pp 264-5. A third possibility is that some intermediate ground was discovered in the decision in Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173, and that the present respondent may place his case within that field.
58. I turn to consider the effect of the terms of the indorsement. After
service of the writ, the respondent's solicitors in reply
to a letter to the
solicitors from the appellant, wrote a letter, including the statement:-
"We advise that the plaintiff relies on publication in each of theThe difficulty with the respondent's attempt to draw comfort from this passage is that what is at issue on the appeal is the grant of leave to proceed after proof of service of the writ, something which had been permitted out of the Territory by reason of s. 4 of the Service Act, subject to the subsequent need under s. 11 for liberty to proceed. The question is one of the meaning conveyed by the words of the Endorsement. It is not that which the party causing the writ to be issued later says was the intended meaning.
States and in the Northern Territory as matters going only to
damages and not as separate causes of action."
59. In my view, the plain meaning of the terms of the Endorsement is that damages are sought for publication on the specified date of "The Age" newspaper in the Australian Capital Territory and throughout Australia. It is plain that the respondent, as plaintiff, was suing to recover damages in respect of the publication not only in the Territory but throughout Australia.
60. In any event, in my view, to rely upon publication in each of the States and Northern Territory as matters "going only to damages and not as separate causes of action" is to assert what in law is impossible.
61. The Herald and Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254 was an appeal in a libel action tried in the Supreme Court of Victoria for a statement published in "The Herald" newspaper. The judgments in the High Court were later described as containing "a firm recognition of the principle that penal or vindictive damages could be awarded": Australian Consolidated Press Ltd v Uren (1969) 1 AC 590 at 635. However, in the direction by the trial Judge as to damages, which was upheld by the High Court, the reference to the mode and extent of the publication of the newspaper appears not to have been concerned with publication outside as well as within the State.
62. It is necessary to begin with consideration of the judgment in the New South Wales Court of Appeal in McLean v David Syme and Co Ltd (1970) 72 SR (NSW) 513. Two judgments were delivered, one by Asprey J.A. and the other by Mason and Manning J.J.A. The trial judge had directed a verdict for the defendant in an action arising out of the publication of an article in "The Age". Evidence of publication outside of New South Wales (in Victoria) had been rejected and this was held by all members of the Court of Appeal to involve an error of law. The verdict for the defendant was set aside and a new trial ordered.
63. At the heart of the case was the operation of the common law system of pleading in New South Wales, then in force under the Common Law Procedure Act 1899 (NSW) ("the 1899 Act"). Section 49 thereof provided that if a plaintiff desired to sue a defendant in the same action upon more than one distinct ground or cause of action, the declaration should include a separate count for each such ground or cause of action.
64. At common law, it is the act of publication of the defamatory matter which constitutes the cause of action, with the result that, as Asprey JA pointed out (at 520), there will be a plurality of causes of action constituted by the publication and sale of a newspaper. Nevertheless, the one count dealing with a publication of a newspaper in New South Wales would not be treated as bad for duplicity as liable to struck out under s. 61 of the 1889 Act. Mason and Manning J.J.A pointed this out at 528.
65. The count had simply alleged the publication of the relevant issue of "The Age". Mason and Manning J.J.A decided (at 528) that it was sufficiently apparent that the plaintiff was suing to recover damages for publication both in New South Wales and in Victoria. However, Asprey J.A. was of the view (at 520-521) that such count would be bad for duplicity and liable to be struck out, because more than one cause of action was pleaded under the single count, there being a separate cause of action in respect of each State in which the newspaper was published.
66. Mason and Manning J.J.A, having construed the count in the way I have indicated, said that it was not for the plaintiff to aver that publication of the matter complained was unlawful or unjustifiable by the law of Victoria. It was for the defendant to assert the contrary. That view as to the steps by which the Rule in Phillips v Eyre is pleaded represents what is now the established position in Australia after Kemp v Piper (1971) SASR 25, Walker v W A Pickles Pty Ltd (1980) 2 NSWLR 281 and Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188; cf S D Robb, supra at 164-169. In the judgment of Mason and Manning JJ.A it followed that the action was so constituted as to enable the plaintiff to seek damages in respect of publication not only in New South Wales but in Victoria. The result was that the evidence of the circulation of the newspaper in Victoria should have been admitted.
67. Further, all members of the Court of Appeal were agreed that even in a case where the plaintiff sued only to recover damages for publication in New South Wales, evidence of publication outside the State would be relevant to defences based on paras (c) and (e) of s. 17 of the Defamation Act 1958 (NSW). Asprey J.A. held that evidence to prove another legally complete cause of action to that under the law of New South Wales had been inadmissible without amendment of the declaration by insertion of an additional count (at 523). But his Honour also referred (at 525) to Whitney v Moignard (1890) 24 QBD 630, as authority for the proposition that in the assessment of damages for the unlawful publication of defamatory matter acts of publication beyond the jurisdiction of the court are not disregarded.
68. However, as is apparent from the citation in that case by Huddleston B (at 631) of a passage of the second edition of Odgers, what was there involved was the doctrine of republication. By this means the defendant is rendered liable for the consequences of the repetition of the defamatory matter on the footing that the other parties have become the agents of the defendant; see Sims v Wran (1984) 1 NSWLR 317 at 320. Hence the comment by Blackburn C.J. in Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 at 88 that he doubted that Whitney v Moignard was to be understood as it had been by Asprey J.A.
69. It should be noted that it is clear from page 12 of the report that in Comalco the plaintiff was claiming publication in Victoria, South Australia and the Australian Capital Territory, each as a separate cause of action. The same had been the case in Meckiff v Simpson (1968) VR 62 at 63-64 and Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238 at 241. It was also to be the case in Smith v John Fairfax and Sons Ltd (1987) 86 FLR 343 at 356. It may well be that in such litigation damages should not be duplicated but should be properly proportioned to the extent of the publication in the jurisdictions in which the causes of action are claimed.
70. That is another question. It does not detract from the proposition that, in respect of publication in any of the jurisdictions outside the Territory, the plaintiff, if the point is raised by the defendant on the pleadings, cannot recover damages if the "double-actionability" rule as now propounded in McKain is not satisfied. Nor is it support for the proposition that, putting to one side any complexities that may flow from the application of the republication doctrine, the plaintiff may recover damages for harm to the reputation of the plaintiff in a jurisdiction outside the Territory even though that "harm" would not be wrongful there.
71. Against this background I turn to consider Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173. Senior counsel for the appellant who is experienced particularly in these matters in Victoria, informed us that Toomey's case had not been applied in the Supreme Court of Victoria. He suggested that in truth, the case propounded no new principle, but that if it did, it should not be followed. Counsel for the respondent, who is experienced in these matters particularly in New South Wales, informed us that she was aware of no decision of the New South Wales Court of Appeal which dealt with Toomey's case.
72. In that case the defendant carried on business in New South Wales and was amenable to the jurisdiction of the Supreme Court of that State, in the territorial sense, both as to local and foreign torts. Hunt J dealt with an application by the defendant to strike out an allegation in the statement of claim that the issue of the defendant's newspaper in which the matter complained of appeared was published not only in New South Wales but also in "the other States and Territories of Australia". His Honour said that the application raised the question of whether a plaintiff pursuing a claim deliberately restricted to the publication of a newspaper within New South Wales was entitled to rely upon the publication by the defendant of the newspaper interstate "as a matter going to damages". In para. 5 the plaintiff had complained of the publication of a matter "in the States and Territories aforesaid". As Hunt J remarked, that was the clearest allegation that the plaintiff was relying upon separate causes of action arising in each State and Territory.
73. However, in response to a request for particulars it had been said by the plaintiff that he relied on publications outside New South Wales "on the question of damages". His Honour described this as an equivocal reply which the defendant had interpreted as meaning only that the publications were relied upon on the question of damages, not in addition to their being separate causes of action. Hunt J refused to strike out from para. 3 of the statement of claim the words "and the other States and Territories of Australia".
74. Having discussed the republication doctrine as involving damage flowing
from the original publication in the ordinary and usual
course of things and
thus recoverable as a consequence of that original publication, in accordance
with the general principles relating
to damages in tort, Hunt J continued (at
183)
"Once this principle is seen to be the basis for the liability ofThe plaintiff had put forward the interstate publication as relevant to "aggravated compensatory damages" but his Honour said (at 184) that he did not accept that the plaintiff was so limited. After referring to McLean v David Syme and Co Ltd supra he said (at 184)
the original publisher for the damages which flowed from such a
republication, there cannot, in my view, be any logical
distinction drawn between the damages for which a defendant is
liable where he makes a multiple publication himself and those for
which he is liable where, in foreseeable circumstances, someone
else republishes what he has himself published. Nor can any
logical distinction be drawn between those two cases where the
other publications which are not made the subject of separate
causes of action in the proceedings are outside the jurisdiction
of this Court."
"In my view, the common law permits a plaintiff who has pleaded a75. Hunt J then (at 186) said that the Defamation Act 1974 (NSW) made no relevant change to the common law.
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."
76. His Honour turned to the defendant's submission that it was prejudiced because if the argument for the plaintiff be accepted the defendant would be unable to plead to the interstate publication any defences available according to the lex loci delicti which were not available to answer the plaintiff's cause of action in New South Wales. His Honour concluded (at 186) that he could see no reason why the defendant could not "adduce evidence of any facts which would constitute an affirmative defence to an action for defamation based upon an interstate publication upon which the plaintiff relies upon the issue of ordinary compensatory damages", provided the defendant had pleaded specifically such facts which if not pleaded specifically might take the plaintiff by surprise. The defendant's claimed prejudice did not exist.
77. We were referred to several unreported decisions of the Supreme Court of the Territory in which effect has been given to what was taken to be the result of the reasoning in Toomey. The decisions included Gutman v Clouston (13 July 1989, unreported) and Reardon v Yaffa Publishing Group Pty Ltd (21 May 1992, unreported). However, the juridical basis for the conclusion in Toomey was not further explored in these judgments. We were told that this is the first occasion upon which the matter has come before an appellate court.
78. The result of Toomey, in my view, is something of a conundrum. If the defendant is to be permitted to lead evidence of facts which raise defences under the lex loci delicti then, in accordance with the principles as to the pleading of the rule in Phillips v Eyre, described by Mason and Manning J.J.A. in McLean v David Syme and Co Ltd supra and the other authorities to which I have referred, the result of Toomey is no different from that which would obtain if the issues tendered for trial arose upon a plurality of causes of action, one in respect of each jurisdiction. This appears to have been how Kelly J understood Toomey in Waterhouse v Australian Broadcasting Corporation (1987) 87 FLR 369 at 376-9.
79. Alternatively, the decision may be understood, as the respondent would have it, as authority for the courts of the forum to recognise and enforce extraterritorial rights arising from the commission of civil wrongs outside the jurisdiction (something to which the rule in Phillips v Eyre is directed) by awarding damages for harm to reputation sustained by publication elsewhere, regardless whether that injury was wrongful there. If that be the correct reading of it, then, in my view, the decision should not be followed.
80. The respondent's arguments on this branch of the case, in resistance to
the allowing of the appeal, should not be accepted.
There remain the issues
raised as the effect of the cross-vesting legislation.
Cross-Vesting
81. Sub-s. 4(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic)
provides that:-
"The Supreme Court of another State or of a Territory has and mayThe Supreme Court of the Territory is included within the operation of this provision. The term "State matter" is defined in sub-s. 3(1) as meaning a matter:-
exercise original and appellate jurisdiction with respect to State
matters."
"(a) in which the Supreme Court has jurisdiction otherwise than byThe term "State" is defined in sub-s. 3(1) as including the Northern Territory. The legislation in the other States is to like effect.
reason of a law of the Commonwealth or of another State; or
(b) removed to the Supreme Court under section 8 (from an inferior
State court or tribunal)."
82. At the national level, the Parliament has provided in sub-s. 9(2) of the
Cross-Vesting Act that the Supreme Court of a Territory may:-
"(a) exercise jurisdiction (whether original or appellate)"State" includes the Northern Territory (see sub-s. 3(1)).
conferred on that court by a provision of this Act or of a law of
a State relating to cross-vesting of jurisdiction; and
(b) hear and determine a proceeding transferred to that court
under such a provision."
83. Section 6 of the Northern Territory (Self Government) Act 1978 provides
that the Legislative Assembly of the Northern Territory
has power, subject to
the assent of the Crown representative, to make laws "for the peace, order and
good government of the Territory."
The Jurisdiction of Courts (Cross-Vesting)
Act 1987 (NT), sub-s. 4(3) states:
"4(3) The Supreme Court of another State or of a Territory has andThe phrase "Northern Territory matter" is defined in sub-s. 3(1) to mean a matter removed to the Supreme Court from an inferior court or tribunal (under s. 8) and a matter in which the Supreme Court has jurisdiction "otherwise than by reason of a law of the Commonwealth or of another State."
may exercise original and appellate jurisdiction in respect
to Northern Territory matters."
84. Section 9 of the Cross-vesting Act contains a statement by the national Parliament that the Supreme Court of one Territory (here the ACT) may exercise jurisdiction conferred on it by a provision of a law of the Northern Territory (treated in s. 9 as a "State"). It is unnecessary to explore the intricate exercise of the power conferred by s. 122 of the Constitution which is involved in this legislation.
85. There is a lengthy preamble to the Cross-vesting Act. It is in terms
which do not materially differ from those of the preambles to the other
legislation. It is recited that it is desirable:-
"(a) to establish a system of cross-vesting of jurisdictionIn what sense or senses is the term "jurisdiction" used in this legislation, in particular in sub-s. 9(2) of the Cross-vesting Act and sub-s. 4(3) of the State legislation?
between (federal, State and Territory 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 of 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."
86. In answering that question it is necessary also to have regard to sub-s. 4(1) of the Cross-vesting Act. This provides that where the Federal Court or the Family Court has jurisdiction with respect to a civil matter and, inter alia, the Supreme Court of a Territory would not, apart from s. 4, have jurisdiction with respect to that matter, then jurisdiction is conferred on the Supreme Court of that Territory with respect to that matter. That exercise of jurisdiction by the Territory court is subject to the provisions of s. 6 dealing with "special federal matters", a topic considered by the Full Court of this Court in NEC Information Systems Australia Pty Ltd v Lockhart supra.
87. It should also be noted that the definition of "State matter" which I have set out means that, as between State Supreme Courts there is no cross-vesting of accrued jurisdiction being claims at common law or under State statute law which are attached to a federal claim all comprising the one federal "matter". Jurisdiction with which a State Supreme Court is invested by s. 39 of the Judiciary Act is not conferred upon another State Supreme Court by the cross-vesting legislation; see Lindell "The Cross-Vesting Scheme and Federal Jurisdiction conferred upon State Courts by the Judiciary Act 1903 (Cth)", (1991) 17 Mon L Rev 64 at 68-70, Enid Campbell "Cross-Vesting of Jurisdiction in Administrative Law Matters" (1990) 16 Mon L Rev 1 at 7. Nor, even if this were possible, is it thereby sought to be conferred upon the Supreme Court of a Territory; see NEC supra p 14.
88. If a State Supreme Court already has federal jurisdiction over a "matter", sub-s. 11(1) has no application: Professors Kelly and Crawford, "Choice of Law under Cross-Vesting Legislation" (1988) 62 ALJ 589 at 603. On the other hand, if the Supreme Court is not exercising federal jurisdiction, then para. (b) applies, and this may require the application of the law of another State as the lex causae. If the Supreme Court exercises federal jurisdiction then the choice of law rules will be those "picked up" by s. 79 of the Judiciary Act: Musgrave v The Commonwealth supra, Pollack v The Commissioner of Taxation (1991) 32 FCR 40 at 49, 59-61. If there is also a disparate non-federal claim in the one proceeding, the Supreme Court may be exercising jurisdiction flowing from two sources and para. (b) may apply to one branch of the case and s. 79 to another.
89. These anomalous results brought about by s. 11 of the Cross-vesting Act are significant, when it is appreciated that in a large number of proceedings the State courts are exercising federal jurisdiction although that may not be apparent at first sight. A significant recent example is Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407. The Court of Appeal held that in entertaining a claim brought by a worker who had been injured outside New South Wales whilst working for the Queensland Commissioner, the New South Wales Compensation Court was exercising federal jurisdiction. This was because the worker was resident in New South Wales and the Commissioner was to be considered the State of Queensland for the purposes of s. 75(iv) of the Constitution. There was a matter between a State and a resident of another State. The Compensation Court was not one to which the cross-vesting legislation applied, but nevertheless the case illustrates the potential for the drawing of difficult distinctions between the operation of s. 11 of the cross-vesting legislation and s. 79 of the Judiciary Act. The result in the Waterhouse defamation litigation to which I have referred would have differed if federal diversity jurisdiction could have been invoked; para. 11(1)(b) would not have applied. Section 79 of the Judiciary Act would have operated.
90. It has been said that one result, suggested to be beneficial, of the operation of the cross-vesting scheme is that "it will not be necessary for a court to determine whether it is truly exercising its ordinary federal, State or Territory jurisdiction, or whether it is exercising some cross-vested jurisdiction": Griffith, Rose and Gageler "Choice of Law in Cross-vested Jurisdiction: A Reply to Kelly and Crawford" (1988) 62 ALJ 698. This tendency is manifested in s. 11, which is stated to operate, inter alia, so as to change the choice of law rules otherwise applicable not only if the court will be exercising cross-vested jurisdiction in determining a matter for determination in a proceeding, but also if it appears to the court that it will be likely to be exercising such jurisdiction. It will be an odd result if the rights and liabilities of litigants are to be determined in such a fashion.
91. The term "likely" has various shades of meaning. It may suggest a mere possibility, or, more strongly, a substantial real and not remote chance: Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10. Whatever the sense in which "likely" is used in s. 11, it means that the lex causae may be selected by a criterion of uncertain and unspecific application. This criterion is an unsatisfactory means of distinguishing between the lex causae which would apply upon the exercise of federal jurisdiction and that which otherwise would apply. Section 11 should not be read as operating where, in truth, the court is exercising not cross-vested but federal jurisdiction, so that s. 79 of the Judiciary Act "picks up" a choice of law rule which may differ from that supplied by para. 11(1)(b).
92. The presence and extent of cross-vested jurisdiction in a proceeding is to be ascertained after a determination of the limits of any federal jurisdiction with which the court is invested and which is exercised in the proceeding. That boundary may advance during the conduct of a case; see NEC supra pp 11-13. Questions as to the limits of federal jurisdiction, at bottom, depend upon the effect given to Chapter III of the Constitution. Accordingly, in a given case where s. 11 is relied upon, questions of jurisdiction may involve constitutional facts; cf O'Toole v Charles David Proprietary Limited [1991] HCA 14; (1991) 171 CLR 232 at 251-2, 272-3, 292-3, 308. If the Constitution is to be observed and what is said to be "jurisdiction" is not to rise above its source, the necessary distinctions must be observed.
93. Other difficulties and obscurities in the operation of s. 11, in addition to those to which I have referred in these reasons, both above and in earlier passages, are discussed in paras. 3.17-3.20 of the Choice of Law Report. The Report concludes that para. 11(1)(b) does not provide "either a clear or satisfactory answer to conflicts arising between the statutes of different States." In truth it may be "a piece of law reform which seems itself to call somewhat urgently for reform": Bitumen and Oil Refineries (Australia) Limited v Commissioner for Government Transport [1955] HCA 1; (1955) 92 CLR 200 at 211.
94. In Seymour-Smith v Electricity Trust of South Australia (1989) 17 NSWLR 648 at 659-60 it was held that the effect of the legislation, at least between the Supreme Courts of the States, was that there was vested in each Supreme Court both the "substantive jurisdiction" of the other Supreme Courts and their "procedural jurisdiction". Counsel for the respondent sought to rely upon that decision. She contended that the result was to supply sufficient authority for the service of the writ upon the appellant outside the Territory and in the State of Victoria, and that there had been no requirement validly imposed by O. 78 of the Rules of the Supreme Court of the Territory that leave first be obtained.
95. I would not accept the submission that the effect of sub-s. 9(2) of the Cross-Vesting Act is that the jurisdiction said to be conferred on the Supreme Court of the Territory by State laws relating to cross-vesting, to the exercise of which by the Supreme Court of the Territory the Parliament consents, is what has been described as "personal" jurisdiction of the kind provided for in the Service Act. I do not regard sub-s. 9(2) as a law with respect to the service of process. (Nor would I so regard the corresponding provisions of the State and Northern Territory cross-vesting legislation).
96. The considerations to which I have had regard in reaching the above conclusions include the following. First, undoubtedly the effect of the Cross-Vesting Act is to authorise the Supreme Court of the Territory to entertain disputes of a character not previously justiciable in that Court. Thus, it has been suggested that the general law rule denying jurisdiction to the Supreme Court of the Territory to adjudicate upon title to a right to or possession of land outside the Territory (Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30) is done away with by the operation of the cross-vesting legislation; Sykes and Pryles "Australian Private International Law" supra at 60-61. Further, in addition to such cases arising under the general law there is a wide range of State statutes which both create new rights and invest the courts of the State with jurisdiction to grant special remedies in relation thereto. An example is the Family Provision Act 1982 (NSW), considered in Smith v Smith [1986] HCA 36; (1986) 161 CLR 217. Other examples are provided by Mason and Crawford in "The Cross-Vesting Scheme" (1988) 62 ALJ 328 at 333. Thus, there is ample work for the operation of the cross-vesting legislation if it be seen as concerned purely with jurisdiction in respect of subject matter.
97. Secondly, by s. 4 of the Cross-Vesting Act the Parliament, pursuant to s. 122 of the Constitution, confers upon the Supreme Court of the Territory jurisdiction in certain matters as is conferred upon this Court or the Family Court of Australia by laws made pursuant to s. 77 of the Constitution. The point of immediate significance is that when so understood what s. 4 identifies by use of the term "jurisdiction" is particular classes of matter or controversy by reference to either or both the parties and the subject matter. It is unlikely that there was a shift in meaning in the use of the term "jurisdiction" in ss. 4 and 9 so that in the latter provision it was used to identify so-called "personal jurisdiction".
98. Thirdly, there may be proceedings where, when the Supreme Court of the Territory acts pursuant to s. 9, the defendant who is sued for a tort committed outside the Territory is personally present for service upon him in the Territory, cf Ainsworth Nominees Pty Ltd v Hanrahan (1982) 2 NSWLR 823 at 825. Other defendants may be personally present (i) elsewhere in Australia or (ii) in another country. If the cross-vesting legislation is to be construed as concerned not only with jurisdiction in respect of subject matter but also with conferral of "long-arm" jurisdiction, then it would be a curious result if the length of the arm were to end with the territorial limits of Australia. Provision would then be made for category (i) but not category (ii). This Court and the Family Court of Australia, to which the legislation applies, are already in a different position as regards category (i), their process running throughout Australia.
99. Fourthly, the Cross-Vesting Act was enacted after the New South Wales Court of Appeal had held that the Service Act was intended to co-exist with Part 10 of the Supreme Court Rules (NSW) (Flaherty v Girgis (1985) 83 FLR 223), and this decision was affirmed by the High Court [1987] HCA 17; (162 CLR 574) very shortly before the Royal Assent to the Cross-vesting Act on 26 May 1987. One would be slow to attribute to the Parliament the intention to add to what were already in the State Supreme Courts already were two systems providing for service of process within Australia but outside the State, a third system, and to do so as a matter of implication and without any express indication of the form to be taken by that system. The same may be said of the intentions of the State Parliaments, and the legislature of the Northern Territory.
100. Nor, in my view, is it an answer to say that when the court of State A exercises, pursuant to this legislation, the jurisdiction of a court of State B with respect to a particular subject matter, that carries with it the same result as to amenability to service against a defendant present in State B that would follow if the defendant had been personally present in State A rather than in State B. There will be cases where the defendant in question is to be found in State C, although the case, for example, concerns a tort committed by him whilst he was in State B.
101. In their article "The Cross-Vesting Scheme" (1988) 62 ALJ 328 at 335, Mr Mason QC and Professor Crawford express the view that the legislation "is likely to be construed as affecting only the subject-matter of the courts in question, leaving personal jurisdiction to be achieved under the otherwise applicable rules." I agree that the cross-vesting legislation is to be so construed.
102. However, to accept that construction of the legislation is not to deny
that its existence may provide the occasion for a rule-making
power already
given to the court by existing law, so as to provide for service outside the
jurisdiction in this additional class
of case. The fresh subject matter
jurisdiction is to be exercised in accordance with established procedures for
extra-territorial
service of process; see Electric Light and Power Supply
Corporation Ltd v Electricity Commission of New South Wales [1956] HCA 22; (1956) 94 CLR 554
at 559-560; Enid Campbell "Rules of Court", 1985, p 62. Order 78 of the
Territory Rules was added, with effect from 1 July 1988, by a Statutory Rule
No. 145 of 1988. The Rule was expressed as having been made under s.
28 of
the Supreme Court Act. Paragraph 28(1)(d) of that Act provided for the making
of Rules for prescribing any matter or thing that was, inter alia, required
or
permitted by the Act to be prescribed by Rules of Court. Section 16 of the
Supreme Court Act 1933 stated:-
"Writs of summons issued out of the Supreme Court and notices of103. As I have mentioned earlier in these reasons, in Cotter v Workman (1972) 20 FLR 318 it was decided that what was then O. 12 r. 1 was invalid. This provided in effect that writs issued out of the Court might be served anywhere in the Commonwealth, without leave and without restriction or qualification of subject matter. But Fox J held that ss. 16 and 28 of the Supreme Court Act were in general terms and had to be construed so as to give power only to make such rules as were within the ambit of s. 122 of the Constitution. He contrasted the remaining provisions of O. 12 which dealt with service, after leave, of process out of Australia on grounds involving a connection with the Territory. The decision is further discussed by Professor Enid Campbell, supra pp 76-77.
such writs may be served out of the jurisdiction of the Court in
the manner and to the extent provided by the Rules of Court."
104. In the present case, s. 9 of the Cross-vesting Act, insofar as it provides that the Supreme Court of the Territory may exercise jurisdiction conferred on it by a provision of a State law relating to cross-vesting of jurisdiction, is a law supported by s. 122 of the Constitution: Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 at 241-2, A-G (WA) v Australian National Airlines Commission [1976] HCA 66; (1976) 138 CLR 492 at 512-4, 521-4, 531; cf Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79 at 97. The contrary has not been suggested. Order 78 is supported by ss. 16 and 28 of the Supreme Court Act in relation to the subject-matter jurisdiction for which provision is made is s. 9 of the Cross-Vesting Act. The presence of s. 9 provides the additional factor that was missing in the attempt to sustain the very general terms of the previous O. 12 r. 1.
105. As I have indicated, no attempt was made in the present case to invoke
O. 78 before effecting service of the writ of summons
outside the Territory.
Conclusions
106. I agree with the orders proposed by Neaves J.
On 6 March 1992, Miles C.J. granted leave to the respondent to proceed further with an action for defamation commenced in the Supreme Court of the Australian Capital Territory on 17 June 1991. That leave was granted pursuant to sub-section 11(1) of the Service and Execution of Process Act 1901 ("the Act").
2. The appellant now applies for leave to appeal to this Court against that grant of leave.
3. Central to the issue between the parties is the interpretation of ss.11(1)(d) of the Act.
4. That sub-section provides as follows:-
11. (1) When no appearance is entered or made by a defendant to a5. There was and is no issue concerning the validity of the Writ of Summons or the regularity of service. Service of the Writ of Summons was effected on the appellant in Victoria.
writ of summons served on him under this Act, if it is made to appear to
the Court from which the writ was issued or a Judge thereof:
...
(d) that any act or thing sought to be restrained or removed, or
for which damages are sought to be recovered, was done or is
to be done or is situate within that State or part;
...
such Court or Judge may on the application of the plaintiff order from
time to time that the plaintiff shall be at liberty to proceed in the
suit in such manner and subject to such conditions as such Court or
Judge may deem fit, and thereupon the plaintiff may proceed in the suit
against such defendant accordingly."
6. The endorsement on the Writ stated:-
"The plaintiff's claim is for:7. By a letter dated 5 July 1991, solicitors for the appellant wrote to the solicitors for the respondent noting that the endorsement seemed to rely on publication outside the Australian Capital Territory. Insofar as it did so, it was said,
(1) Damages for the publication of defamatory material of and
concerning the plaintiff by the defendant in a newspaper cartoon
which appeared in "The Age" newspaper on Tuesday, 7 May 1991 as
set out in the attached Schedule hereto marked "A".
The said defamatory material was published by the defendant in the
Australian Capital Territory and throughout Australia."
"... the ACT Supreme Court has no jurisdiction over this matter, unless8. The assertion was, perhaps, inaccurately expressed. It was really an assertion relying on the objection upheld in Victorian Network Ltd v Whitlam (1980) 31 ALR 184. The ACT Supreme Court, had it jurisdiction over the appellant, had jurisdiction to decide the substantive issue between the appellant and respondent. The appellant was, in reality, asserting that, in the absence of a submitting appearance, the respondent must be refused leave to proceed so far as publication outside the Territory is concerned.
the defendant submits to the jurisdiction which it is not inclined to
do."
9. It may be noted that Victorian Broadcasting Network Ltd v Whitlam (supra) is not directly in point. In that case, Victorian Broadcasting Network's objection was based on the assertion that it did not publish the defamatory matter anywhere other than Victoria, had no presence in the Australian Capital Territory and was not knowingly concerned in the publication which had taken place in the Territory. In this case, it is not contended that the appellant did not distribute, or cause to be distributed, the newspaper containing the allegedly defamatory matter throughout Australia. Indeed, both the learned Chief Justice and this Court were invited to assume that.
10. The appellant contends that the distribution of each copy of the newspaper in question is a separate cause of action. Effectively, it says, that whilst those causes of action occurring within the Australian Capital Territory can be joined together and heard together in the Territory, the various groups of causes of action accumulating outside the Territory are separate matters which the appellant cannot be required to answer for in the Territory.
11. The respondent sought to overcome that argument by asserting, as his
solicitors did, in a response to that objection dated 15
July 1991,
"... the plaintiff relies on publication in each of the States and in12. To that contention the appellant responds that, whilst the appellant is liable for the foreseeable consequences of its acts of publication in the Territory, that does not include any damage flowing from its acts of publication outside the Territory. It is, it says, quite different in principle from a case where a person to whom the offending matter was distributed in the Territory passes it on to someone outside the Territory by way of a foreseeable republication.
the Northern Territory as matters going only to damages and not as
separate causes of action."
13. The respondent, however, contends that it can rely on any publication in
the Territory, even of only one copy of the offending
newspaper, and, then,
adduce evidence of multiple distribution by the appellant of the same matter,
whether within or without the
Territory, in exacerbation of damages.
Service and Execution of Process Act - What is required
14. A court will, traditionally, seek to assert jurisdiction over an extra-territorially located defendant if, and only if, some relevant nexus exists between that defendant and the forum.
15. What will be regarded as a relevant nexus will, in the case of foreign states, depend on what the legislature of the forum is prepared to sanction as such in the light of international agreements or conventions. In the absence of such authorisation jurisdiction will be asserted only over defendants who are present or enter an unconditional appearance within the jurisdiction (see Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310, 323 per Dixon C.J., Williams and Webb JJ.).
16. An example of an extension of the common law nexus is the Common Law
Procedure Act 1852 (UK) (15 and 16 Victoria C.76 s.XVIII).
That Act provided
(inter alia) -
"In case any Defendant, being a British Subject, is residing out of the17. The laws of the various States of the Commonwealth, of course, make varying provisions for extra-territorial service of Writs of Summons. They provide a means of valid service of enforceable commands additional or alternative to (as the case may be) the Service and Execution of Process Act 1901 (see K W Thomas Pty Ltd v Groves (1958) VR 189).
Jurisdiction of the said Superior Courts, in any Place except in
Scotland or Ireland, it shall be lawful for the Plaintiff to issue a
Writ of Summons ... and it shall be lawful for the Court or Judge, upon
being satisfied by Affidavit that there is a Cause of Action which arose
within the jurisdiction or in respect of the Breach of a Contract made
within the Jurisdiction ... to direct ... that the Plaintiff shall be at
liberty to proceed in the Action ..."
18. Whilst it is not directly relevant here, it has been suggested that a provision for extra-territorial service prescribing no substantive nexus with the jurisdiction would be invalid.
19. In Cotter v Workman (1972) 20 FLR 318, Fox J held that Order 12 rule 1 of the Rules of the Supreme Court of the Australian Capital Territory could not extend to validly authorising extra-territorial service where no substantive nexus existed.
20. His Honour reasoned that the Australian Capital Territory Supreme Court
Act 1933 (Cth) and the Rules made thereunder were clearly
intended as an
exercise of the powers given to the Commonwealth Parliament under s.122 of The
Constitution. If so, then,
(325) "... a particular law can only be valid if it has a sufficient21. The latter proposition was referred to in Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132. Notwithstanding that Dixon C.J., in that case, had accorded to the term "for the government of any territory" appearing in s.122 "a wide meaning" including "everything that is fairly incidental to the legislative power" falling within it (see 146), Fox J considered that, nevertheless, there were limits which he expressed as follows:-
connexion with the government of the Territory. Provided that that
connexion exists, the law can have a substantial operation outside the
Territory, that is to say, in the States or other Territories."
(327) "If the question is asked, whether a law having s.122 as its22. His Honour did admit of the possibility that the residence of a co-defendant in the jurisdiction could provide such a nexus, if it was specified as such. However, O12 r1 was not so confined and his Honour declared it invalid.
constitutional foundation can give to a court of a territory power to
hear and determine an action against a person served outside the
territory, the only connexion with the Territory being that proceedings
are commenced in its court, the answer must be that it cannot. Such a
law would impinge upon much of the judicial power of the States, but the
fundamental objection would be that it was not a law "for the government
of" the Territory. The law would not be relevant, or incidental, to the
government of the Territory. It would be a law with respect to curial
proceedings, and in relation to such proceedings one looks to matters
such as the subject of dispute, and the persons over whom or the
property in respect of which jurisdiction is being exercised. For this
reason, it cannot make any difference, in the situation postulated, that
the plaintiff is resident in the Territory."
23. In Coppin v Tobler Bros Canberra Marine Centre Pty Ltd (1980) 1 NSWLR 183, Master Allen followed Cotter v Workman.
24. He relied upon it, however, to support the following proposition:-
(187) "Clearly it is beyond the competence of the legislature to invest25. The nexus expressed in the Rules was, the Master considered, sufficient to support a rule that a Writ could be served extra-territorially, (inter alia),
upon this Court jurisdiction in respect of matters wholly unconnected
with this state. Such a provision would not be "relevant or incidental
to the government of "the State"."
(185) (Pt 10, r1(i)) "... where the proceedings are properly brought26. The latter situation was precisely that considered in Cotter v Workman. The Rule, in that case, failed because it was not expressed to be so confined. Nevertheless, if joinder of proper parties is a "sufficient nexus", it is difficult to see why joinder of other causes of action where it would be proper to do so would not also be a "sufficient nexus".
against a person served or to be served in the State and the person to
be served outside the State is properly joined as a party to the
proceedings."
27. In Seymour-Smith v Electricity Trust (SA) (1989) 17 NSWLR 648, Rogers C.J. Comm D upheld the validity of a new Rule (Pt 10 2B).
28. The only restriction that Rule placed on service of process of the Supreme Court of New South Wales was that of leave to proceed following service. It did not require any specified nexus to be demonstrated for leave to be granted.
29. As Rogers C.J. Comm D noted, the abolition of any nexus for authorising effective service was recommended by the Australian Law Reform Commission in its Report on the Service and Execution of Process (1987) ALRC 40.
30. In place of nexus provisions there is to be scope for an application to
determine the most appropriate venue for the trial of
the action or actions in
question.
That provision can be supported by s.51(xxiv) of The Constitution.
31. If the power of the Commonwealth can so far extend, and I have no doubt that it can, it is difficult to see why the Commonwealth could not have authorised process issued by the Supreme Court of the Australian Capital Territory to be effectively served throughout Australia. Had Fox J considered that issue in Cotter v Workman, it may be that the validity of the former O.12 r.1 would have been viewed differently. If it is open to the State of New South Wales effectively to abolish nexus provisions, it is difficult to see why the Territory could not.
32. The relevance of the above discussion is to contrast the need for nexus provisions Fox J assumed necessary by reason of the assumed limitation on the Commonwealth's powers to provide for the service of Territory process, with the lack of any such need when the Commonwealth exercises its powers under s.51(xxiv) of the Constitution and includes the Territories in such provisions by virtue of s.122 and s.51(xxxix). There is no need, therefore, to adopt any view that recognises any implied limitation on the clear words of s.11(1) of the Service and Execution of Process Act 1901 by reference to any supposed limitation on the power of the Commonwealth with respect to the subject matter of the legislation.
33. It may be noted that the Common Law Procedure Act 1852 provided a nexus expressed as being "a Cause of Action which arose within the jurisdiction ...". If s.11(1)(d) is to be satisfied by such a circumstance, it would require a conclusion that the publication complained of arose within the jurisdiction. Publication, and its consequential damage constitutes the cause of action in defamation.
34. Section 11(1)(d), that part of s.11(1) alleged in this matter to be
apposite, is, however, in different terms. It refers, relevantly,
to,
"any act ... for which damages are sought to be recovered ... was done35. In fact what gives rise to the potential claim for damages in the case of defamation is the formulation of the defamatory statement and thereafter that act or those acts that result in its ultimate dissemination. It may involve the engagement of the services of others. Those others may be innocent agents or otherwise.
or is to be done ... or is situate within that State (or Territory)
...".
36. In Hall v ACT Electricity Authority (1980) 31 ALR 557 a fire had started in the Territory. It spread to, and caused damage to property in, New South Wales. Some New South Wales residents commenced proceedings in the Supreme Court of New South Wales for damage suffered in New South Wales. Master Sharpe rejected a proposition that "... the mere suffering of damage within the jurisdiction ..." was sufficient to satisfy s.11(1)(d). This was directly contrary to a view expressed by Hardie Boys J in Adastra Aviation Ltd v Air Parts (NZ) Ltd (1964) NZLR 393. However, the Master concluded that his opinion was in conformity with Wilson Electric Transformer Co Pty Ltd v Electricity Commission of NSW (1968) VR 330 and Buttigeig v Universal Terminal and Stevedoring Corporation (1972) VR 626.
37. I refer to, and repeat, what I said on this issue in Zappacosta v The
Queanbeyan Bowling Club Ltd (ACTSC; 20/2/91; unreported),
(20-23) "Reference was made to Wilson Electric Transformer Company Pty38. That case involved a death in the Territory following an injury in New South Wales. I went on to comment as follows:-
Ltd v Electricity Commission of NSW (1968) VR 330. In that case, a
worker had been killed whilst employed by the plaintiff, a Victorian
company. He was electrocuted in New South Wales at a power station
operated by the defendant, a New South Wales statutory corporation. The
plaintiff sued in the Supreme Court of Victoria for a contribution from
the defendant towards the compensation paid by the plaintiff in respect
of the death of the worker. The writ was endorsed under the SEP Act.
The right to contribution relied on was created by s.62 of the Workers
Compensation Act 1958 (Vic). Adam J rejected the proposition that the
liability so created could be described as a "contract" within the
meaning of s.11(1)(b) of the SEP Act. As to s.11(1)(d), his Honour held-
(333) "Under that paragraph the "act or thing...for which damages are
sought to be recovered" must be "done" or be "situate" in Victoria.
What is complained of in this action and that for which damages in the
shape of an indemnity against the compensation paid are sought is the
conduct of the defendant in the operation and control of its power
station in New South Wales - "acts" or "things" there "done" or
"situate". The contention that the act for which damages are sought to
be recovered was the payment of compensation in Victoria - the subject
matter of the indemnity - I find quite unconvincing. For the foregoing
reasons, it has not been made to appear to me that this case comes
within any of the cases referred to in s.11(1) of the Service and
Execution of Process Act."
No issue arises in this case as to the categorisation of the right of
action vested in the plaintiff. It is not contractual. Whilst
s.11(1)(d) is not confined to tortious claims, it is plainly applicable
to the present matter. (c.f. Ansett Transport Industries (Operations)
Pty Limited v Alenia Aeritalia and Selenia S.p.A. (ACTSC; Miles C.J.;
27/11/91; unreported). The point, however, made by Miles C.J. in the
latter case is of assistance in the present matter. The principle his
Honour affirmed was that the matter of the construction of s.11(1) of
the SEP Act is one of statutory interpretation. Referring to s.11(1)(d)
his Honour said -
(7) "Although para.11(1)(d) of the Act has been described as "the tort
provision, authorising leave to be granted in respect of actions
involving torts committed within the forum" (Law Reform Commission,
Service and Execution of Process, Report ALR 40, para. 123) it is clear
that as a matter of construction of the words used in the statute, the
ambit of the paragraph must go beyond claims in tort, and extends to any
claim for damages in which there is an act of the type contemplated
which has been done or is still to be done within the territorial limits
of the court of issue of process. The reference to "an act...to be
done" would seem to include an omission where an omission gives rise to
a right to sue."
I would respectfully support that view of s.11(1)(d).
It follows that s.11(1)(d) does not confine itself to acts or omissions
which are themselves complete causes of action. It suffices that the
act or omission satisfies the statutory description.
Any act or omission which is a constituent element of the claim for
damages, whether alone or in combination with other acts or omissions is
sufficient.
It seems to me that if a person has no right to claim damages until
some loss has been suffered then the act or omission comprising that
suffering of loss or damage is one of the acts or things to which
s.11(1)(d) refers. Insofar as Hall v ACT Electricity Authority (supra)
suggests otherwise, I decline to follow it."
(23-26) "The happening of the death of the deceased in this Territory39. The question, then, is whether publication within Australia but outside the Australian Capital Territory, is an act, or are acts which are relevant to the claim for damages in this Territory. Those acts do not become relevant because of any defence or defences that the defendant might plead. At this stage of proceedings the respondent must show that the acts of extra-territorial publication are relevant to the claim for damages within the Territory. That means that they are either acts for which action could be brought in the Territory (whether alone or in combination with other acts) or are material acts of the tortfeaser relevant to the assessment of damages in the Territory. If the relevant cause of action arises in the Territory there will be a relevant act or omission for which damages are sought occurring within the jurisdiction. However, a relevant act or omission happening within the jurisdiction need not itself be an act or omission constituting a cause of action or the final act or omission giving rise to it.
completed the chain of acts or omissions giving rise to the right to
claim damages. The subsequent events quantifying the extent of the
claim are not relevant. That is the distinction suggested by
Hardie Boys J in Adastra Aviation Ltd v Airparts (NZ) Ltd (supra) and I
respectfully adopt it.
I do not regard Wilson Electric Transformer Company Pty Ltd v
Electricity Commission of NSW (supra) as requiring a different
conclusion. That was a case primarily of contract. Damage is not an
ingredient of the cause of action. The place of breach is focussed upon
by s.11(1)(b) SEP Act. Section 11(1)(d) was treated as only of
peripheral relevance. The indemnity, even if not "contractual" (and
some doubt exists about the correctness of the characterisation of the
right of action) was activated not by payment which, was in Victoria,
but rather by the liability to make payment which arose in New South
Wales.
Buttigeig v Universal Terminal andStevedoring Corporation (1972) VR 626,
another case referred to in Hall v ACT Electricity Authority (supra),
was not a case which related to s.11(1)(d). The validity of service in
that case relied on Rules of Court based on a ground that a "tort" was
committed within the jurisdiction". That test is different. That was
said to focus on the "act on the part of the defendant which gives the
plaintiff his cause of complaint within the jurisdiction" (Distillers
Co. (Bio-chemicals) Ltd v Thompson (1971) AC 458, 466 per Lord Pearson).
In the latter case, whilst the negligent manufacture took place in the
United Kingdom, a failure to warn the plaintiff had taken place in New
South Wales where the product was marketed.
It has been held that a test in terms of "damage suffered wholly or
partly in the state caused by a tortious act or omission however
occurring" is satisfied if the death under the Compensation to Relatives
Act 1897 (NSW) occurs in New South Wales wherever the consequential loss
of support may happen (see Keevers v O'Neill (1977) 1 NSWLR 587; Baldry
v Jackson (1977) 1 NSWLR 494). Nygh ("Conflict of Laws" 4th ed p 37)
suggests that the "damage suffered" test merely reflects the Distillers
view as opposed to that adopted by Master Sharpe in Hall v ACT
Electricity Authority (supra).
In Nominal Defendant v Motor Vehicle Insurance Trust of Western
Australia (1983) 50 ALR 511, the plaintiff sought to sue on a right
created by a Western Australian Statute. It sued in New South Wales.
The right to sue arose out of the fact that there had been personal
injury caused by the use of a Western Australian motor vehicle in New
South Wales upon which judgment was obtained in New South Wales. The
defendant did not indemnify the plaintiff. Miles J held that the cause
of action, although created by the Western Australian statute, arose
within the State of New South Wales.
It may be concluded therefore that the cause of action herein arose at
the moment of death of the deceased and not before. That death happened
in this Territory. It follows that the cause of action arose here.
That cause of action is based on two material facts. The first is
injury resulting in death which, had death not happened, would have
entitled the deceased to sue the defendant and recover damages. That
event happened in New South Wales. Its wrongful character can only
derive from the law of that State. The second material fact was the
death itself. That happened in this Territory.
It is not the function of the SEP Act to define the jurisdiction of
State and Territory Courts. It is intended to facilitate service of
process and to be supplementary to other modes of extra-territorial
service (see Flaherty v Girgis (supra)). There is no reason to suppose
that s.11(1) was intended to lead to a result that only one State or
Territory could issue enforceable process for or in respect of any one
cause of action. It does limit the range of available States and
Territories to those with which the pleaded cause of action has one or
more of the prescribed connections (in the absence of a submitting
appearance).
In this case it seems to me that, if an act or omission which is an
element of the cause of action happened in the Territory, the terms of
s.11(1)(d) are satisfied. It follows, of course, that a writ issued by
a relevant New South Wales court would also have satisfied s.11(1)(d).
The Courts of the other States and Territories could hear and determine
the cause but the defendant would not be obliged by the terms of the SEP
Act to submit to the jurisdiction of those Courts. Whether it could be
obliged to do so by Rules of Court or legislation of such States or
Territories I do not need to decide. Nor do I need to decide whether
the Cross-vesting legislation or Rules made pursuant thereto would
render the objection raised in these proceedings redundant."
40. If, however, s.11(1)(d) means that a cause of action is required to be
shown as having arisen within the jurisdiction, the position
may be different.
McGregor J in Eyre v Nationwide News (1967) NZLR 851 expressed the position,
so far as New Zealand was concerned, as follows,
(854) "In an action in New Zealand the plaintiff's rights depend on the41. The nexus to be satisfied in the latter case was that of a cause of action arising within the jurisdiction. The major area of publication had been Australia. Leave to serve the defendant out of New Zealand was refused notwithstanding that some publication (23 copies) had taken place in New Zealand. The basis for that refusal, however, was not that no cause of action arose in New Zealand but that the bulk of the damage was suffered in Australia. Thus it was inappropriate to permit the action to proceed in New Zealand.
detrimental effect on his reputation in this country; the damage must
have accrued within the jurisdiction. Any loss of reputation he has
suffered abroad from publication in another country is a matter for the
Courts exercising jurisdiction in the country of publication."
42. In Tricon Industries v Abel Lemon and Co Pty Ltd (1988) 2 Qd R 464, Shepherdson J interpreted Eyre v Nationwide News Ltd as deciding that a cause of action arising within the jurisdiction against an extra-territorial defendant does not permit the litigation of extra-territorial causes of action. The Siskina (1979) AC 210 was also referred to as supporting that opinion.
43. Lord Diplock, however, did not conclude that a foreign tort could not be joined with and be litigated with a domestic tort. His Lordship would have allowed that course, if the foreign tort was connected by reference to the domestic rules permitting jurisdiction to be asserted over the extra-territorial and non-submitting defendant.
44. Those rules would, in my view, be more restrictively interpreted towards residents and citizens of other nation states than is required as between residents of Australian States or Territories.
45. As his Lordship noted,
(254-5) "In several of the cases specified in the sub-rules (a) to (o)46. It may be noted that, in Tricon Industries v Abel Lemon and Co Pty Ltd (supra), Shepherdson J was concerned with the position of a foreign corporation. Matthews J in MacGregor v Application Des Gaz (1976) Qd R 175 had expressed the opinion that an "act done within the jurisdiction for which damages are sought to be recovered" can include an omission. Shepherdson J declined to adopt that opinion.
the jurisdiction exercisable over foreigners by the High Court is wiser
than that which is recognized in English law as being possessed by
courts of foreign countries. These are "exorbitant" jurisdictions which
run counter to the normal rules of comity among civilised nations. For
this reason it has long been held that where there is any room for doubt
as to their meaning the provisions of the sub-rules are to be strictly
construed in favour of the foreigner ... And it is in my view equally
well settled now that it is not permissible in any action commenced by
service of process on a person out of the jurisdiction to litigate any
claim that does not fall within one or other of sub-rules (a) to (o)..."
47. That controversy does not, however, arise here. The acts of publication
in the Territory are positive acts not mere omissions
such as failure to warn.
However, I would comment that it is difficult to see why, in principle, a
material omission being one of
the elements of the cause of action being
asserted, should not be regarded as an act for the purposes of s.11(1)(d).
Relevance of extra-Territorial publication to Quantum of Damages
48. Of course, s.11(1)(d) will be satisfied if the respondent may choose only those acts of publication within the Territory and rely on acts of publication elsewhere in exacerbation of damages.
49. This issue was discussed by Hunt J in Toomey v Mirror Newspapers Ltd
(1985) 1 NSWLR 173. His Honour commenced his analysis of that issue with the
following observation:
(178) "In the case of a newspaper, there is a separate publication (and50. The facts of Duke of Brunswick v Harmer (supra), to which his Honour referred in the passage cited, are of interest. In that case, there was a count for defamation arising out of the publication of an issue of a newspaper 17 years before. The defendant, with manifest glee, pleaded the Statute of Limitations. The noble plaintiff, however, proved that one copy of the offending newspaper had been sold to an agent of the plaintiff despatched to the defendant's place of business for the purpose of purchasing the same within the preceding six years. Defendant's counsel objected that, as the only proven publication that founded the cause of action was of one copy purchased at the plaintiff's request, damages should be minimal. He contended that the statute-barred acts of publication were irrelevant. However, Lord Denman C.J. declined to limit damages as suggested.
thus a separate cause of action) in relation to each copy delivered to a
reader: Duke of Brunswick v Harmer [1849] EngR 915; (1849) 14 QB 185 at 189; [1849] EngR 915; 117 ER 75,
76-7. If a newspaper circulates 100,000 copies of the one edition
(defamatory of the plaintiff) he has available to him at least 100,000
causes of action. The "single publication" rule adopted in the United
States, whereby a plaintiff is given only one cause of action for each
entire edition of the newspaper has not been adopted in this country:
See McLean v David Syme and Co Ltd (1970) 72 SR NSW 513, at 520, 528; 92
WN 611 at 616-617, 625. It was nevertheless an acceptable practice,
even under the common law system of pleading then in force in this
State, for a plaintiff to plead only one count to comprehend a claim for
damages based upon the publication of the entire issue of a newspaper in
this State: ibid at 522, 528, 618-619, 625. But it was, in my
experience, usual for there to be a separate count relating to the
publication of the newspaper in each State."
51. On appeal, that opinion was upheld. Coleridge J, having referred to the
difficulty of separating damages for particular acts
of publication where
multiple acts are alleged, rested his opinion on a wider principle,
(189-90) "Sir Frederick Thesiger urged, secondly, that, in directing52. If other acts of publication than the particular act or acts charged are relevant to the assessment of damages whether or not those other acts if separately sued upon would have been statute-barred, it would be extraordinary if extra-territorial acts of publication would be regarded as irrelevant when they could be sued on although in another jurisdiction.
the jury as to the damages, Lord Denman should have expressly cautioned
the jury to limit the amount to be given on this count to what injury
they might believe to have been occasioned by the single publication
proved. This, of course, would have necessitated the separation of the
damages given on this count from those on the other counts which were
for other libels: and this, in the present instance, was scarcely
possible, as some of the latter counts referred to, and in some sense
incorporated, the libel in the first count with those for which they
were themselves framed. But we know no reason why the ordinary rule
should not have been pursued in this case. We have no doubt the jury
were sufficiently informed as to the peculiar circumstances of the case;
and considering these, and the nature of the libel itself, they were to
draw their conclusion as to the amount of injury resulting, and the
proper compensation to be given."
53. Even other acts of publication than that sued on though different in kind have been accepted as relevant. In Vines v Serell (1835) 7 C and P 163, 173 ER 72 the act charged was publication of a defamatory pamphlet. Evidence of the posting of a placard to similar effect by the defendant was considered by Park J to be admissible "with a view to the amount of the damages".
54. The scope of publication was referred to as being relevant to the
assessment of the extent of the harm done by Best C.J. in De
Crespigny v
Wellesley [1829] EngR 350; (1829) 5 Bing. 392, 130 ER 1116.
(402) "But if the (defamatory) report is to be spread over the world byIt may be noted that no territorial or jurisdictional limitation was thought to be relevant.
means of the press, the malignant falsehoods of the vilest of mankind,
which would not receive the least credit where the author is known would
make an impression which it would require much time and trouble to erase
..."
55. In Gathercole v Miall (1846) 15 M and W 319, 153 ER 873, the libel
charged was the publication of defamatory matter in a newspaper. Copies were
circulated in the plaintiff's neighbourhood
but not by the defendant. A copy
had also been sent to a library having 80 members. It was objected that such
evidence was not
admissible, the acts of publication in question not having
been done or authorised by the defendant. The trial judge, Parke B,
considered
such evidence to be admissible,
(326) "... to shew the actual extent of the circulation of the libel,56. On motion for a new trial, Parke B added to his previous opinion,
and the consequent injury to the plaintiff's character."
(327) "But I conceive, that if any person, not the editor of the Times57. The other members of the Court of Exchequer agreed. Pollock, CB said,
newspaper, sends the Times paper, published for the purpose of general
circulation, to particular individuals, and individuals read it, ...
that is a circumstance that may be taken into consideration in
aggravation of damages, in an action against the publisher of that
paper."
(331) "Now, it (the offending article) appears to have been issued as58. That view seems to me to have been confirmed by the High Court in The Herald and Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254. At 263, the majority (Knox C.J., Gavan, Duffy and Starke JJ.) held that,
newspapers generally are, for the purpose of being circulated; and I
think, in order to shew the extent of the mischief that may have been
done to the plaintiff by a libel in a newspaper, you have a right to
give evidence of any place where any copy of that libel has appeared for
the purpose of shewing the extent of the circulation."
"... the learned trial judge would have been right if he had instructed59. None of the above cases addressed the issue of extra-territorial publication directly. However, none of them suggest that the additional publications, albeit themselves tortious, had to be sued upon separately in order to be relevant to damages in the action then being pursued.
the jury that in assessing damages they were entitled to take into
consideration the mode and extent of the publication ..."
60. McLean v David Syme and Co Ltd (1970) 72 SR (NSW) 513, 92 WN (NSW) 611
does address that issue. The plaintiff sued upon publication of "The Age"
newspaper in New South Wales by the circulation in that
State of 2,209 copies
of it. In the area in which the plaintiff lived, about 60 copies were
circulated. The plaintiff gave particulars
of publication as being in "New
South Wales (and other States)". Those particulars were not tendered but
counsel for the plaintiff
sought, at trial, to adduce evidence of circulation
outside New South Wales. The evidence was excluded by the trial judge. On
appeal,
Asprey J.A. considered that the evidence had been wrongly excluded.
It was relevant, his Honour considered, not only to malice (at
523) but also
to damages, even though the publication was extra-territorial and not one of
the causes of action sued upon. His Honour
said,
(525) "Despite the fact that the rejected circulation figures related61. Mason and Manning J.J.A., whilst acknowledging that each separate instance of publication of defamatory matter was capable of being sued on as a separate tort, acknowledged that, at common law, it was open to sue upon publication of the entire issue of a newspaper. After referring to the "single publication" rule in the United States, that is, that only one action could be brought in respect of multiple distribution of the same defamatory statement, their Honours commented as follows,
to publication of the defamatory matter outside the jurisdiction in
which the cause of action sued upon arose, the evidence would have been
admissible in the plaintiff's evidence in chief on the issue of damages
..."
(528) "Although our courts have not adopted expressly the theory of the62. Their Honours did not, however, express any conclusion as to whether the defendant might have successfully objected to the declaration on the ground that it asserted publication both in New South Wales and Victoria. Nevertheless, their Honours did not dissent from the view Asprey J.A. had expressed as to the relevance of extra-territorial publication.
single publication rule, it has not been the practice in actions for
defamation arising out of the publication of an issue of a newspaper
that the plaintiff should plead and prove each separate publication of
the newspaper. Defamation actions of this kind have been dealt with on
the footing that the plaintiff may recover damages in respect of the
entire issue of a newspaper so long as he proves a publication on one
occasion, notwithstanding that there may be multiple publications. Even
the common-law system of pleading in vogue in New South Wales has
recognized the sufficiency of one count in a declaration to comprehend a
claim for damages based on publication of the entire issue of a
newspaper in New South Wales."
63. Whilst I agree with Hunt J (Toomey v Mirror Newspapers Ltd (supra), 180) that Whitney v Moignard (1890) 24 QBD 630 was not an entirely explicit authority for the propositions affirmed by Asprey J.A. in McLean v David Syme and Co Ltd (supra) it was, nevertheless, certainly authority for the view that the range of distribution of a defamatory statement is relevant to damages.
64. In Whitney v Moignard (supra) the offending matter was published in the London edition of "The New York Herald". The "republications" were, in fact, other copies of the same newspaper printed and published in France and other countries.
65. It seems to me that that situation is not distinguishable from a newspaper publisher delivering many copies of its paper to numerous newsagents for circulation to the public throughout Australia.
66. Of course, if a plaintiff has recovered damages by reference to extra-territorial publication but without separately suing on the torts constituted thereby, it would be an abuse of process subsequently to sue on those torts. The principle of regarding such a proposed multiplicity of actions as an abuse of process was approved in Thomson v Lambert (1938) 2 DLR 545, 561 by Davis J.
67. The case of the distribution of a newspaper, therefore, is not indistinguishable from a case of multiple publication by a defendant personally. However, even so, in respectful agreement with Hunt J, I cannot see why it should be.
68. I would also note that, in Comalco Ltd v ABC (1985) 64 ACTR 1, 89
Blackburn C.J. concluded,
"... provided that the damages are not duplicated, but are properly69. It is also clear (p 87-89) that his Honour accepted McLean's case, and the opinion expressed by Asprey J.A. therein, as representing the common law. Damages for the libel in question, he concluded, whilst they could be awarded only in respect of causes of action pleaded in the Territories and States to which they related, could include a consideration of the publication of the matter complained of leading to damage to reputation wherever that damage was suffered. In that case, the plaintiff contended that damage outside the Commonwealth of Australia could be considered relevant.
proportioned to the extent of the publication in the jurisdictions in
which causes of action are claimed, the court must award damages
appropriate to the harm done to the plaintiff's reputation without
regard to the "place" of such harm."
70. Hunt J expressed a similar conclusion in Toomey v Mirror Newspapers Ltd
(supra) when he said,
(184) "In my view, the common law permits a plaintiff who has pleaded a71. Kelly J cited that passage, with apparent approval, in Waterhouse v ABC (1987) 87 FLR 369. The latter case concerned the repetition in the various States and Territories of Australia of a telecast allegedly defamatory of the plaintiff.
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."
72. Hunt J, in Burrows v Knightly (1987) 10 NSWLR 651, applied the principle affirmed in Toomey v Mirror Newspapers Ltd (supra) to a series of related articles which, in combination, made a series of defamatory imputations. In other words, one action will be permissible even if there are separate publications in several jurisdictions which, only in combination with material published in another jurisdiction conveys imputations defamatory of the plaintiff.
73. Gallop J, in Gutman v Clouston and Australian Consolidated Press Ltd (ACTSC; SC 482 of 1984; 13/7/89; unreported) accepted the same principle, as did Miles C.J. at first instance in this matter. I have also accepted what Gallop J referred to as "well settled law" in Reardon v Yaffa Publishing Group Pty Ltd and Cohen (ACTSC; SC 370 of 1991; 20/5/92; unreported).
74. However, the appellant contends that the principles so long affirmed by
so many judges is wrong in principle. It is objected
that it would jeopardise
the application of interstate defences. It is also relevant to consider
whether that principle is inconsistent
with the cross-vesting legislation.
Defences to extra-territorial publications
75. It was objected that, to sue on one act or group of acts of publication but take the extra-territorial acts of publication into account on the issue of damages, would be unjust to a defendant in that defences applicable in those jurisdictions, but not available in the Territory, might be avoided.
76. In Toomey v Mirror Newspapers Ltd (supra), Hunt J found no reason in principle why, if a plaintiff pleaded a single publication but gave notice of intention to rely on publication out of the jurisdiction (as well as other instances within it) upon the issue of ordinary compensatory damages, a defendant could not adduce evidence of facts which would, had that publication been separately sued upon, amount to an affirmative defence. It seems to me obvious that a defendant ought not to have to pay damages for acts of publication or republication for which there would be no successful award of damages had that act or those acts been separately sued upon (see p 186).
77. Kelly J expressed a similar opinion in Waterhouse v ABC (supra). Miles C.J., in the judgment appealed from, noted that whether a plaintiff sues on each publication or jurisdictional group of publications alleged or sues on one publication or one such group of publications alleged, relying on extra-territorial publications in aid of damages, the principles affirmed in Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 and McKain v R W Miller and Company (South Australia) Pty Limited [1991] HCA 56; (1991) 104 ALR 257 would apply.
78. As the learned Chief Justice said,
(Appeal Book, 35) "In either case, however, the defendant is entitled79. I respectfully agree.
to raise matters in defence according to the principles relating to
"interstate torts" ..."
80. It is not appropriate in this case to consider, on this appeal, whether the choice of law should be governed by the place of each publication or jurisdictional group of publications or by reference to a "flexible exception" based on an overriding connection with the forum or, indeed, with some other jurisdiction. That was postulated in Chaplin v Boys (1971) AC 356. It was not ruled out by the High Court in Breavington v Godleman (supra).
81. I express no view as to whether the range of defences available to
interstate publications will be affected by the cross-vesting
legislation.
That question was considered by Hunt C.J. at CL in Waterhouse v ABC (SC NSW;
SC 14019/89; 7/2/92; unreported).
Inappropriate choice of venue
82. It follows from the above that, at least from a point of view of satisfaction of s.11(1)(d), a plaintiff may sue wherever a copy of an allegedly defamatory newspaper is circulated. That is, at least insofar as such place of circulation is, at least, reasonably foreseeable to the publisher.
83. However, that is not an end to the matter. Satisfaction of s.11(1)(d) (or any of the other sub-paragraphs) merely enables leave to proceed to be granted. It does not require it. Leave to proceed may also, of course, be conditional.
84. It is open to the Court to stay an action if it is an abuse of process. This will follow if leave to proceed is refused (see Victorian Broadcasting Network Ltd v Whitlam (supra)).
85. In Eyre v Nationwide News Ltd (supra), the minimal number of copies circulated in New Zealand was held to warrant a stay. Begg J took a similar view in Maple v David Syme and Co Ltd (1975) 1 NSWLR 97. In that case, the major area of publication was Victoria. Actions were commenced both in New South Wales and Victoria. Counsel for the defendant objected to the multiplicity of suits.
86. Begg J said,
(102) "Having regard to the complexity and length of modern defamation87. Thus minimal connection with the jurisdiction and the desirability of avoiding multiplicity of actions for the same defamatory matter will either alone, or in combination, warrant a refusal of leave to proceed with a consequential stay of proceedings even if leave to proceed is not forbidden by s.11(1). Over and above the question of abuse of process is the cross-vesting legislation.
actions, particularly against newspapers, it seems to me to be unduly
oppressive on a defendant to have to defend itself twice in two separate
actions when the plaintiff could not only vindicate his honour, but also
obtain complete monetary compensation, if successful, for the whole of
the publication including the relatively small number circulated in New
South Wales, in the one action."
88. Where the same tort is committed in multiple jurisdictions, as is alleged here, there would seem to be only a fortuitous virtue in adopting a narrow view of s.11(1)(d), or of s.11(1) generally. It would be fortuitous because, had this appellant, as most media operators do, had a presence in this Territory, s.11(1) would be immaterial. The true issue as to the locus of the action, namely, the more appropriate venue, would then have been squarely raised.
89. I consider, with respect, that question to have been appropriately
addressed by Miles C.J. in Woodger v Federal Capital Press
of Australia Pty
Ltd (ACTSC; SC412/89; 26/2/92; unreported). There, his Honour said,
(71-72) "... a plaintiff may go forum shopping. It may be that a90. It follows, I think, that any "forum shopping" by a plaintiff will readily be dealt with by an application under the cross-vesting legislation.
plaintiff claiming to be defamed by an interstate publication will
choose to sue in a State or Territory in which there was very limited
distribution of the publication concerned and where the substantial
connection of the case is with another State or Territory in which there
has been widespread publication. In such a case, the court in which the
plaintiff originally sued might have little difficulty in declining to
apply the exception and in insisting on applying the lex loci delicti.
Where the tests laid down by the cross-vesting legislation were met,
consideration could be given to transferring the matter or part of it to
the Supreme Court of the place where the lex loci delicti and the lex
fori would coincide."
91. In Arrowcrest Group Pty Ltd v Advertiser News Weekend Publishing Co
(ACTSC; Miles C.J.; SC 265 of 1989; 19/7/89; unreported)
a matter commenced
in the Territory involving Australia-wide publication was transferred to the
Supreme Court of South Australia.
The substantial part of the publication was
in that State. That was also the place where the greater part of the
reputation of
the plaintiff was situated. The added cost of litigating the
matter in Canberra rather than Adelaide was also considered relevant.
I
discussed these various issues in Baffsky v John Fairfax and Sons Ltd (1990)
97 ACTR 1. It is enough to observe that the cross-vesting legislation provides
a more appropriate mechanism for ensuring the proper disposition
of multiple
Australia-wide torts than adopting either the "single publication" rule, which
seems to me to be unduly restrictive,
or by adopting the approach,
unsanctioned by authority, but blessed by the iron logic, urged by counsel for
the appellant.
General
92. I have had the advantage of reading, in draft, the judgment of Gummow J. I agree with his Honour that leave to appeal ought to be granted and with his reasons for so concluding.
93. I have expressed no opinion as to the nature of any cross-vested jurisdiction which has been or may have been conferred by s.11 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). I have no doubt that it is able to extend the scope of valid service of originating process of all Australian courts to the limits of the Australian nation. Such a result is consistent with the status of Australia as one nation.
94. However, the respondent did not seek to invoke the cross-vested procedural jurisdiction of the ACT Supreme Court. Had he done so, he would have had to comply with O.78 of the ACT Supreme Court Rules.
95. I therefore agree with Gummow J that O.78 cannot now avail the respondent in relation to the service of the Writ in question here.
96. I join with his Honour in urging that there be clearly and promptly enacted a simple, universal and single system for the service of process throughout Australia. It is apparent that no injustice will result from letting originating processes run free throughout the limits of the Commonwealth with venue being decided in terms of "the more appropriate venue" test as embodied in cross-vesting legislation.
97. I also agree that if a plaintiff sues on a separate publication, even of the same material, in another place then that separate "act", unless otherwise amenable to the jurisdiction of the Court, is not, under current rules, able to be sued upon by reference only to the existence of a related cause of action which is amenable to the jurisdiction. At least within Australia, such a restriction is, as has been suggested, out-moded. Nevertheless, if the matter is to be viewed as one of the joinder of several causes of action, The Siskina (supra) would preclude the joinder of extra-territorial torts as acts for which damages are sought unless there was a relevant presence of the defendant in the jurisdiction, or voluntary submission to it. That reasoning ought to be applied unless the High Court should rule that The Siskina should be accepted only in relation to international matters and another rule applied in relation to intra-Australian matters.
98. It will be apparent, however, that I do not agree that it is impossible to sue on one act of publication resulting from the printing of a newspaper and rely on other acts of publication so as to assess the proper measure of damages for that one act sued upon. It follows that I respectfully disagree with his Honour's view. Acceptance of his Honour's view would, I believe, not only require much ancient authority, consistently followed to date, to be departed from but also call into question, by analogy, the view taken in criminal law that evidence of similar acts of an offender can be used, not only to negative certain defences, but also to fix penalty.
99. I see nothing wrong, and much convenience, in affirming, that a plaintiff defamed by the dissemination of defamatory matters across State or even national borders has two basic options. He or she may separately sue on each act of publication or each jurisdictionally confined group of acts of publication. If that is done, a defendant may take action to prevent a multiplicity of actions by the plaintiff in other jurisdictions. The courts will restrain any such multiplicity of actions. The second option is to choose one act of publication or one jurisdictionally confined group of acts of publication and adduce evidence of similar acts of publication on the issue, if raised, of certain defences and on the quantum of damage. The defendant would then, in like manner, be entitled to restrain the plaintiff from pursuing further action in respect of any of those other acts of publication as being an abuse of process.
100. Of course, as Hunt J noted in Toomey's case, it is necessary for the plaintiff to make a clear election, otherwise confusion can, and probably will, result. Particularly will this be so in the hands of practitioners inexperienced in dealing with defamation actions. Great care is required, particularly on the part of those representing a plaintiff, to ensure that matters in mitigation of the damage occasioned by other acts of publication are properly particularised by the defendant. That is, the pleadings should not appear to reflect those matters, particularly defences going to liability in other jurisdictions, as going to liability for the tort sued upon as opposed to the quantum of damages.
101. The endorsement on the Writ of Summons herein is, of course, ambiguous. It should be amended. That is a course the Rules permit. The endorsement should be amended to exclude reference to publication outside the Australian Capital Territory. The Statement of Claim, when delivered, should not allege such publication either, save as a particular in aggravation of damages.
102. I would uphold the appeal only to the extent necessary to add the above conditions to the grant of leave. I would otherwise agree with and confirm the orders made by the learned Chief Justice.
103. It is open to the appellant then to make, if it be so advised, a further application to stay or transfer the proceedings on the basis of the duplication of other proceedings or to transfer the matter to a more appropriate venue, if there be one.
104. I would order the appellant, having substantively lost, to pay the respondent's costs of this appeal.
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