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

Alan Le Busque v Acp Publishing Pty Limited [2006] ACTSC 46 - ACTSC 2006 case summary — Zoe

[7]

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.

[12]

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.

[13]

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.

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