Alan Le Busque v Acp Publishing Pty Limited [2006] ACTSC 46

3. The defendant has admitted nothing but its own incorporation and has specifically denied that the matter complained of was capable of conveying the imputations alleged and that such imputations were capable of being defamatory of the plaintiff. The defendant has also pleaded various common law and statutory defences.

4. Section 5(2) of the Act is in the following terms:

(2) If--

(a) a proceeding (in this subsection called the relevant proceeding) is pending in the Supreme Court (in this subsection called the first court); and

(b) it appears to the first court that--

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(ii) having regard to--

(A) whether, in the opinion of the first court, apart from this Act and a law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; and

(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of that other State or Territory and not within the jurisdiction of the first court apart from this Act and a law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

(C)the interests of justice;

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.

5. The defendant relies upon the contention that it is "otherwise in the interests of justice" for the matter to be transferred to the Supreme Court of New South Wales.

6. This concept was recently considered by the High Court of Australia in BHP Billiton Ltd v Schultz [2004] HCA 61; [2004] 221 CLR 400. The majority, Gleeson CJ, McHugh and Heydon JJ, explained, at [14], that in applications of this nature the court is not required to consider whether it is justified in refusing to exercise a prima facie duty to exercise a jurisdiction that has been regularly invoked but rather to fulfil a statutory requirement to ensure that cases are heard in the forum dictated by the interests of justice. Hence, the relevant question is not whether the first court is a "clearly inappropriate" forum but whether, in the interests of justice, the second court is more appropriate. Their Honours observed at [15-16] that the interests of justice were not the same as the interests of any one party. The interests of the plaintiff could be relevant to the interests of justice. For example, if a plaintiff were near to death and it appeared that the court to which transfer was sought could not deal with the case expeditiously then that would be a relevant consideration. On the other hand, there may be cases in which the advantage which a plaintiff might gain from proceeding in one court would be matched by a corresponding and commensurate disadvantage to a defendant and justice would not attribute greater weight to the interest of one than the other. Their Honours also said at [18] that references sometimes made to one jurisdiction or another as the "natural forum" were usually based upon a consideration of "connecting factors" described by Lord Gough in Stiliada Maritime Corp v Cansulex Limited [1987] AC 460 at 478, including matters of convenience and expense such as the availability of witnesses, the places where the parties respectively reside or carry on business and the law governing the relevant transaction. In that case Lord Templeman, at 478, had described such factors as "legion", and said that it was difficult to find clear guidance as to how they were to be weighed in a particular case.

7. In the present case, a number of issues emerged for consideration. Mr Wheelhouse, who appeared for the defendant, stressed that the majority in BHP Billiton Ltd had rejected the idea that a plaintiff's choice should not be lightly overridden, observing at [25] that this idea was still influential in the Australian approach to forum non conveniens but out of place in a decision of this kind. He accepted that the plaintiff and other witnesses whom he might wish to call to give evidence on his behalf resided in Canberra but suggested that, on the other hand, the defendant might need to call one or more witnesses who resided in Sydney. In particular, he suggested that the journalist who wrote the article and perhaps the editor of the magazine might be called to give evidence in support of the pleaded defences and to address the allegation in the reply that the article was published with little or no regard to the accuracy of its contents, without any real basis in fact and without proper inquiry. He pointed out that whilst the plaintiff's lawyers were based in Canberra, he and his instructing solicitors were based in Sydney. Hence, viewed overall, the "connecting factors" of the kind described by Lord Gough were evenly balanced.

8. Mr Crowe SC, who appeared for the plaintiff, submitted that the balance was tipped, albeit slightly, in favour of permitting the matter to remain in this court because the additional expense of conducting the case in Sydney would be felt more acutely by the plaintiff who, though a relatively senior public servant, could be presumed to have substantially less resources that the corporate defendant, which could presumably well afford the expense of litigation in Canberra. In my opinion, little weight should be attached to this consideration, though it seems unlikely that the defendant would ultimately call as many witnesses as the plaintiff if the matter were to be fully litigated.

9. Whilst acknowledging that there were viable causes of action in relation to all other Australian jurisdictions, Mr Wheelhouse argued that New South Wales was the most natural forum because the defendant was based in Sydney and the article had been published more extensively in New South Wales than in any other state or territory. In contrast, there was no subsisting cause of action in respect of the more limited publication in the Australian Capital Territory.

10. Mr Crowe contended that this was relatively unimportant because the matter complained of had been published nationally and it was not inappropriate for all of actions be litigated in the nation's capital. More importantly, the plaintiff had commenced proceedings in order to vindicate his reputation and a judgment in his favour in his "home town" would achieve that more effectively. Mr Wheelhouse protested that this consideration should be given little weight since there was no subsisting cause of action in relation to the publication in this jurisdiction. I do not accept that this is a wholly satisfactory answer. Defamation actions have long been accepted as means by which plaintiffs can not only obtain damages but also vindicate reputations damaged by the defamatory matter. The latter consideration may be a legitimate object of such proceedings irrespective of the forum in which they are ultimately litigated. It is, therefore, appropriate to consider whether the remedy available to the plaintiff in the event of a judgment in his favour would be more effective if delivered in the city in which he lives and carries on his professional activities. This is not an issue that can be dismissed on the basis that any advantage to the plaintiff would be matched by a corresponding and commensurate disadvantage to the defendant but one that, in my opinion, may be relevant to the interests of justice.

11. Mr Wheelhouse also submitted that the procedure employed by the Supreme Court of New South Wales should be preferred to that prevailing in this Court. He pointed out that, if the matter were to be transferred to the Supreme Court of New South Wales, the defendant would be entitled to have a trial by jury on the issues of whether the pleaded imputations had been conveyed by the matter complained of. The defendant wished to have the benefit of that procedure and the NSW Parliament had clearly determined that defendants in defamation cases should have such an entitlement. Whilst the majority in BHP Billiton Ltd had said that a judge should not act upon a preference between the public policy reflected in an Act of Parliament in one Australian jurisdiction and a public policy reflected in a corresponding Act in another Australian jurisdiction, their Honours had accepted, at [15], that the capacity of the Dust Diseases Tribunal of NSW to deal expeditiously with cases had been rightly regarded as relevant to the interests of justice. Their honours had also said, at [21], that the earlier decision of the Court of Appeal of New South Wales in James Hardie & Company Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 had been illuminating. In that case the Court of Appeal had pointed out that the procedural powers of the Tribunal had not merely provided a forensic advantage to one party and a corresponding disadvantage to the other, but had been factors relevant to a decision on a cross-vesting application because they had the capacity to assist both plaintiffs and defendants in the efficient and economical resolution of disputes and therefore served the public interest. Mr Wheelhouse submitted that the same could be said of the procedure for litigating defamation actions in NSW. If the matter were to be transferred to that jurisdiction, the parties would enjoy the benefits of a two stage process in which the plaintiff would be entitled to have a jury determine the question of whether the alleged imputations had been conveyed by the matter complained of and, in the unlikely event that it found in his favour, the balance of the case would be determined in a later hearing by judge alone.

12. This argument presents some difficulties. First, it does seem to be predicated upon an assumption that the legislative policy underlying the two stage process of litigating defamation actions in New South Wales should be preferred to the legislative policy reflected in the absence of similar provisions in the Australian Capital Territory. I am not aware of any basis for such an assumption. Second, the validity of the proposition that two hearings in Sydney are bound to be cheaper and more efficient than one in Canberra is by no means self-evident. I must confess that I remain somewhat bemused at the regular flow of submissions to this effect, most apparently delivered with quasi-religious conviction and accompanied by missionary zeal rather than a logical exposition of the system's perceived virtues. Mercifully, whilst Mr Wheelhouse was clearly an adherent, he did descend to rational argument, pointing out that if the jury were to determine that the pleaded imputations had not been conveyed by the article, then the proceedings would be concluded without either side having to incur the expense involved in the balance of the case. I accept that this is a valid consideration. However, there is nothing to prevent that issue being separately determined in this court. Mr Wheelhouse responded, with customary tact, that he had previously been unable to persuade judges of this court to embark upon such a limited exercise, but I can see no reason to doubt that the power would be exercised if an adequate case for doing so could be established. Furthermore, the chance that the parties might be saved the time and expense of a full hearing must, in my opinion, be balanced against the chance that a Sydney jury might find for the plaintiff on this issue and that the parties might incur the expense of two hearings on separate occasions. Mr Wheelhouse submitted that this was unlikely but, if I may say so with respect, the confidence of counsel was not one of the factors identified in BHP Billiton Ltd as a guiding factor in the exercise of discretion and I do not think that I should act upon any preconceived view as to which party might win on this or any other issue.

13. He also submitted that if, notwithstanding his other arguments, I were to conclude that the competing considerations were evenly balanced, then I should exercise my discretion in favour of the jurisdiction in which the defendant resided or, in this case, had its principal place of business. He relied upon a statement made by the majority in BHP Billiton Ltd at [19] to the effect that where an action is between two individuals and the plaintiff resides in one jurisdiction and the defendant in another, there may be no reason to treat the residence of either party as determinative, though it will ordinarily be the residence of the defendant that is important to establish jurisdiction. In the present case, however, the action is not between two individuals, no issue has been raised as to the Court's jurisdiction to deal with the remaining courses of action, and I do not accept that their Honours statement can be read, without regard for the last phrase, as recognising what Mr Wheelhouse described as a "default principle" to the effect that if other considerations are evenly balanced the place of defendant's residence or place of business should be decisive.

14. Considered overall, the matter does seem finely balanced but, in the end result, I have not been persuaded that the Supreme Court of New South Wales is a more appropriate forum for the resolution of the issues raised by this case. Hence, I am not satisfied that it is in the interests of justice that the matter be transferred. The application will be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Counsel for the plaintiff/respondent: Mr R L Crowe SC

Solicitor for the plaintiff/respondent: Pamela Coward & Associates

Counsel for the defendant/applicant: Mr S Wheelhouse SC

Solicitor for the defendant/applicant: Phillips Fox