Supreme Court of the ACT|2013-04-26|Before: Miles CJ

Bateman and Idameneo (No 123) Pty Limited v Fairfax Media Publications Pty Limited and Ors [2013] ACTSC 72 (26 April 2013)

BATEMAN AND IDAMENEO (NO 123) PTY LIMITED V FAIRFAX MEDIA PUBLICATIONS PTY LIMITED AND ORS

COURTS AND JUDICIAL SYSTEM - jurisdiction - cross-vesting legislation - action for damages for defamation - application to transfer proceedings to Supreme Court of New South Wales - transfers in the interests of justice - factors to be considered - place of the tort, the applicable law, location of the parties, procedural matters such as trial by jury, convenience and expense, place of vindication - transfer ordered

COURTS AND JUDICIAL SYSTEM - jurisdiction - cross-vesting legislation - action for damages for defamation - application to transfer proceedings to Supreme Court of New South Wales - transfers in the interests of justice - factors to be considered - existence of an onus on the applicant - onus not relevant

Arrowcrest Group Pty Ltd v Advertiser News Weekend Publishing Co Pty Ltd (1993) 113 FLR 57

Arrowcrest Group Pty Ltd v Advertiser News Weekend Publishing Co Pty Ltd (Unreported, Supreme Court of the ACT, Miles CJ, 19 July 1989)

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57

Australian Broadcasting Corporation v Reading [2004] NSWCA 411

Australian Zircon NL v Austpac Resources NL [2010] WASC 166; (2010) 243 FLR 423

Baffsky v John Fairfax & Sons Ltd (1990) 97 ACTR 1

Bankinvest AG v Seabrook (1988) 92 FLR 153

BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400

BHP Billiton Ltd v Stephens [2011] NSWSC 675

Bourke v State Bank of New South Wales (1988) 22 FCR 378

British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230

Broken Hill Pty Co Ltd v Zunic [2001] NSWSC 561; (2001) 122 IR 170

Callwood v Callwood [1960] AC 659

Carey v Australian Broadcasting Corporation [2010] NSWSC 709

Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246

Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 47

Cini v Pets Paradise Franchising (SA) Pty Ltd [2008] SASC 287; (2008) 102 SASR 177

David Syme & Co Ltd v Grey [1992] FCA 479; (1992) 38 FCR 303

Dawson v Baker (1994) 123 FLR 194

Eden v Amaca Pty Ltd [2007] VSC 374

Ewins v BHP Billiton Ltd [2005] VSC 4

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Fraser v Victorian Railways Commissioners [1909] HCA 5; (1909) 8 CLR 54

Hayward v Barratt [2000] NSWSC 708

Holt v Forehan [2006] VSC 148

Irwin v Queensland [2011] VSC 291

Jackson v John Fairfax & Sons Ltd (Unreported, Supreme Court of the ACT, Miles CJ, 23 December 1988)

James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357

James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20

Kelly v Crosby [2013] HCATrans 17

Kok v Sheppard [2009] NSWSC 1262

Laing-Peach v The Cairns Post Pty Ltd (Unreported, Supreme Court of NSW, Hunt J, 20 October 1989)

Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310

Le Busque v ACP Publishing Pty Ltd [2006] ACTSC 46

Lubans v Scougall [1965] ALR 119

McLeod v Munro [2005] VSC 375

National Mutual Life Association of Australasia Ltd v Tolfield Pty Ltd (No 2) [2011] FCA 1309

National Road and Motorists' Association Ltd v Nine Network Australia Pty Ltd [2002] ACTSC 9

Newell v The King [1936] HCA 50; (1936) 55 CLR 707

Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356

O'Connor v Nationwide News Pty Ltd (1995) 128 FLR 61

O'Donnell v Nage Holdings Pty Ltd [2013] VSC 115

Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610

Pugh v Morrison [2011] ACTSC 44

R v Moroz [2007] VSCA 30

Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148

Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448

Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491

Reid v Wright [2012] NSWSC 1149

Safeway Stores plc v Tate [2000] EWCA Civ 335; [2001] QB 1120

Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 1) [1987] VicRp 21; [1987] VR 261

Slater & Gordon Pty Ltd v Porteous [2005] VSC 398

Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460

Talacko v Talacko (No 2) (2009) 25 VR 613

Taylor v Woolworths Ltd [2012] VSC 286

Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173

Valceski v Valceski [2007] NSWSC 440; (2007) 210 FLR 387

Waterhouse v Australian Broadcasting Corporation (1989) 97 FLR 1

Waterhouse v Herald & Weekly Times Ltd (1997) A Def R 52-090

Windschuttle v ACP Publishing Pty Ltd [2002] ACTSC 64

Woolworths Ltd v Walker [2012] NSWSC 914

FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720)

FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LIMITED (ACN 087 887 456)

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

2. Each party have leave to file and serve any written submissions they wish to make as to costs within 14 days.

1. The first plaintiff, Edmund Thomas Gregory Bateman, is a medical practitioner. He is the managing director of Primary Health Care Limited (Primary Health Care). Primary Health Care, it appears, owns a number of medical centres which, as its name would suggest, provides primary health care, especially through general medical practitioners.

2. Idameneo (No 123) Pty Limited (Idameneo), the second plaintiff, is a wholly owned subsidiary of Primary Health Care. It appears that it is the vehicle through which some of the medical centres are owned and, perhaps, operated.

3. The first and second defendants, Fairfax Media Publications Pty Limited (Fairfax Media) and Fairfax Digital Australia and New Zealand Pty Limited (Fairfax Digital), are media companies which respectively publish, inter alia, the newspaper The Sydney Morning Herald and a number of internet websites in Australia.

4. The third and fourth defendants, Natasha Wallace and Vanda Carson, are journalists employed by Fairfax Media. The fifth defendant, Dr Jeremy Cumpston, is a medical practitioner whose medical practice was purchased by Idameneo and who appears to have a grievance with Dr Bateman and Idameneo over his dealings with them. Idameneo, it appears, is involved in litigation with Dr Cumpston in the Supreme Court of New South Wales over his employment with that company after the sale of his practice.

5. On 7 October 2010, an article written by Ms Wallace and Ms Carson was published by Fairfax Media in The Sydney Morning Herald, a newspaper with a circulation in all States and Territories of Australia but principally and extensively in Sydney and other parts of New South Wales. The article concerned Dr Cumpston and his grievances and litigation with Idameneo and may be said to be critical of Dr Bateman and Idameneo and the work practices that they required of their doctor employees.

6. On the same day, what appears to be the same article, but in a different format, was published by Fairfax Digital on various websites on the Internet.

7. The next day, 8 October 2010, a further article written by Ms Wallace and Ms Carson was published by Fairfax Media in The Sydney Morning Herald. It was a more general article about the business of corporate primary health care providers, including Primary Health Care. It included an inset article about Dr Bateman himself.

8. Again, on the same day, what again appears to be the same article, but in a different format, was published by Fairfax Digital on various websites on the Internet.

9. Dr Bateman and Idameneo apparently considered that these articles damaged their respective reputations and caused them financial loss. Accordingly, they commenced proceedings on 30 November 2010 in this Court claiming, in the case of Dr Bateman, damages including aggravated damages for defamation and other relief and, in the case of Idameneo, damages including for economic loss and punitive damages for injurious falsehood and other relief.

10. All defendants have now filed a defence to the plaintiffs' claim. As to the claim in defamation they challenge the pleaded imputations and plead justification, contextual truth, that the articles contain an honest opinion of the author, fair comment and fair report. As to the claim for injurious falsehood, the defendants deny the allegations made. They also claim that the proceedings should be dismissed under the

Protection of Public Participation Act 2008 (ACT), on the basis that the main purpose of the plaintiffs in commencing the proceedings is any or all of to discourage the defendants from engaging in public participation, to divert their resources from engagement in public participation or to punish or disadvantage them from engaging in public participation.

11. It appears, therefore, that the proceedings will be complex, quite apart from the regrettable but customary complexity of defamation proceedings and that there will be substantial evidence about and dispute as to the facts.

12. The defendants have applied under s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) or s 5(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) for the proceedings to be transferred to the Supreme Court of New South Wales. I shall refer to these Acts collectively as the Cross-Vesting legislation.

13. The relevant statutory provisions are as follows:

1. Section 5(2) of the ACT Act:

5. Transfer of proceedings

...

(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.

(3) Where:

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of another State or of a Territory (in this subsection referred to as the first court), and

(b) it appears to the first court that:

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of New South Wales and it is more appropriate that the relevant proceeding be determined by the Supreme Court of New South Wales,

(ii) having regard to:

(A) whether, in the opinion of the first court, apart from this Act and any 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 New South Wales,

(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State and not within the jurisdiction of the first court apart from this Act and any 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 the Supreme Court of New South Wales, or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of New South Wales,

the first court shall transfer the relevant proceeding to the Supreme Court of New South Wales.

14. As can be seen, the two provisions are relevantly identical, save that the ACT provision gives this Court power to transfer proceedings pending in this Court out to a court in another State or Territory, whereas the NSW Act gives this Court power to transfer proceedings pending in this Court into the Supreme Court of New South Wales.

15. The grounds and relevant considerations are identical.

16. Both parties filed an affidavit in support of or in opposition to the application: an affidavit made by Mr Paul Svilans for the defendants, the applicants for relief under the Cross-Vesting legislation; and one by Ms Marion Bailey for the plaintiffs, the respondents to the defendants' application. There was no relevant challenge to the affidavits and no cross-examination.

17. Given the nature of the application, it is unlikely that I would have permitted cross-examination in any event. As Nicholson J said in Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 1) [1987] VicRp 21; [1987] VR 261 at 272:

There is clearly a discretion in the Court to permit cross-examination on affidavits or otherwise: see LaTrinidad v Browne [1887] W.N. 208; R v Stokesley Justices; Ex parte Bartram [1956] 1 All E.R. 563. In interlocutory matters ... such a discretion is normally exercised somewhat sparingly.

18. See also Talacko v Talacko (No 2) (2009) 25 VR 613 at 616-7; National Mutual Life Association of Australasia Ltd v Tolfield Pty Ltd (No 2) [2011] FCA 1309 at [7]- [11].

19. From the affidavits I make the following findings of fact.

20. Primary Health Care is a company listed on the Australian Stock Exchange with a market capitalisation in excess of $1.7 billion and shareholders in every State and Territory of Australia. Through Idameneo, it operates a total of 82 medical centres in the Australian Capital Territory and in each of the mainland States. Through about 900 general medical practitioners, it provides over seven million medical consultations each year. It is the largest of the medical centre operators in Australia. Many of the medical centres also include a pharmacy which trades out of the centre.

21. Primary Health Care has a diagnostic imaging division through a related corporation, providing diagnostic imaging and radiology services from what appears to be its forty stand alone sites and eighty-two medical centres, in the ACT and all other States in which it operates, save for Western Australia. It is the second largest diagnostic imaging network, by revenue, in Australia.

22. Primary Health Care also has a pathology division and, through a related corporation, has, based on number of collection centres, the largest pathology business across Australia.

23. It has a health technology division which develops, sells and provides support services for health related software and technology products.

24. The medical centres are predominantly bulk-billing and, thereby, gain all the relevant income from Medicare Australia with which it is said to have "a significant relationship".

25. It also has a "significant connection" to the Australian Capital Territory by reason of the location here of what are described as "stake holders and associates", though the nature of that connection is not explicit in the evidence. These "stake holders and associates" are:

(a) The Commonwealth Department of Health and Ageing, which administers federal health services funding to patients attending medical centres, requiring pathology and diagnostic imaging services;

(b) The Office of the Commonwealth Minister of Health, Federal Government, which determines health service provision policy;

(d) The Australian Nursing Federation, the peak body which represents nurses;

(e) The Pharmacy Guild, the peak body for pharmacists.

26. Because of the importance with which the plaintiffs regard their reputation, they propose to send copies of the judgment from the proceedings to medical practitioners considering entering contracts with the Second Plaintiff and to senior public servants in the Department of Health and Ageing in Canberra. I assume they will only do so if they are successful in the proceedings and Dr Bateman's reputation is vindicated.

27. The plaintiffs expect that the defences filed will require evidence from many witnesses which will require many weeks of hearing.

28. The plaintiffs also tendered a memorandum from Mr Tom Molomby SC which was said to be a report of an expert on the procedure and process of the Supreme Court of New South Wales in trials of defamation claims.

29. There is no doubt that foreign law is a question of fact which must be proved by evidence, as explained in Callwood v Callwood [1960] AC 659 at 680-1; James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 at 37. See also s 174 of the Evidence Act 2011 (ACT).

30. While in strict theory, the law of New South Wales is juristically the law of a foreign and separate country (Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310 at 331), this is significantly modified by s 118 of the Commonwealth Constitution. Further, the High Court has identified in Farah Constructions Pty Ltd v Say-Dee Pty Ltd

[2007] HCA 22; (2007) 230 CLR 89 at 152; [135] that "there is a common law of Australia rather than of each Australian jurisdiction" and in Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 at 517; [66] that:

to undertake proof of foreign law is a different and more onerous task than, in the case of an intra-Australian tort, to establish the content of federal, State and Territory law.

31. Thus, s 118 of the Constitution and s 143 of the Evidence Act provide a relatively easy mechanism for the proof by judicial notice of Australian statute law.

32. The opinion of Mr Molomby, however, was of a different character. It did not address the statute law or even, though mentioned and relied on to some extent, the common law, but addressed the procedure and the practical operation, and consequences of the procedure, in the NSW Supreme Court in respect of the conduct of defamation actions. This is not information, it seems to me, of which a court can take judicial notice, other than, of course, matters falling within the ambit of s 143 of the Evidence Act, such as rules of court, practice directions or practice notes issued by the relevant court (which seems to me to fall within s 143(1)(d)) and the like.

34. Much of it, however, contains material of which the court would take judicial notice, namely that addresses before a jury would be ordinarily of a different character than those before a court consisting of a judge alone, that there would be extra time taken up with the empanelling of the jury, and so on, even though this court does not conduct civil proceedings with a jury: s 22 of the Supreme Court Act 1933 (ACT).

35. Despite some attempts (e.g. Lubans v Scougall [1965] ALR 119, Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356), there has not, so far as I can determine, ever been a civil trial before a jury in this Territory, certainly not in a defamation action. Although defamation proceedings were ordered to be heard before a jury in O'Connor v Nationwide News Pty Ltd (1995) 128 FLR 61, the proceedings were settled before trial.

36. It does not need an expert report, however, for this Court to know that a trial before a jury will take longer than a trial by judge alone. To the extent that this view differs from that of Rares J in Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148 at

156; [28], I do so with the greatest of respect to his Honour. It may be that the suggestion there made, that the time taken before a jury would be double the hearing time taken before a judge alone, was so extreme as to lead his Honour to the conclusion to which he came. The inevitable matters associated with a jury trial, such as the empanelment of the jury members, the need for explanation of the role of the jury by the trial judge, the occasion for argument on matters of law, including objections to evidence in its absence, all must increase the length of a jury trial. It seems to me, also, that counsel's address to a jury is likely to be longer than those to a judge sitting alone. The experience in this jurisdiction of the large number of criminal trials before a judge alone leads me to the conclusion that a jury trial will take longer. It may, however, be a matter of nice judgment as to how much longer and whether it is significant in the context of an application to transfer proceedings.

37. What was relevant in the report, however, was the information that there is no settled practice on the procedure to be adopted in the jury trial as to whether the approach suggested by Clarke JA in Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 473, namely that the jury should, where the plaintiff relies on the natural and ordinary meaning of the published words, consider first whether the publication is defamatory prior to other evidence being led, had survived the enactment of the Defamation Act 2005 (NSW) and the consequence as to time.

38. I have to say that it was not entirely clear how much longer Mr Molomby suggested that a trial of these proceedings would take before a jury, though, doing the best I can from his report, it seems to me that he was saying it could be from seven days to eleven and a half days.

39. The plaintiffs have retained a solicitor in this matter whose firm has an office in Canberra and, as far as this can be ascertained on the evidence, no office in Sydney. The solicitor with carriage of the proceedings, Mr R Lucas, is acknowledged as highly experienced in the conduct of defamation proceedings and has a leading practice in this area in Canberra.

40. Prior to the proceedings being commenced, a "concerns notice" under s 14 of the Defamation Act was given in the form of a letter from solicitors who stated that they acted for Dr Bateman. The address of the solicitor shown on the letter was a Sydney address. Such a notice has particular relevance to a possible defence under ss 17 and 18 of that Act. The letter was expressed to be a "[c]oncerns notice for the purposes of Part 3 of the Defamation Act 2005 (NSW) and its counterparts in the other States and Territories." I note that ss 14, 17 and 18 of that Act fall within Pt 3. I also note that ss 126, 129 and 130 of the Civil Law (Wrongs) Act 2002 (ACT) are relevantly identical to the NSW sections.

41. The author of the letter is shown by NSW Law Society records to now practice at Primary Health Care and appears to be its corporate solicitor who is, therefore, perhaps less likely to be in a position to conduct the actual litigation constituted by these proceedings. The firm name on the letter did not appear in the Law Society records.

42. It was submitted that a transfer of proceedings would deprive the plaintiffs of their solicitor with his particular experience and competence in such cases. With all respect to Mr Lucas, whose experience is not in doubt, it is difficult for me to see why he could not, as other practitioners in this Territory have done, continue to represent a party before the Supreme Court of New South Wales. In any event, there are a number of solicitors equally experienced in the conduct of defamation proceedings in New South Wales.

43. The hesitation of the courts to have much regard to the risk that a proper decision on the conduct of proceedings will lead to a change of practitioner (see R v GZ

[2012] ACTSC 183 at [23]), means that this consideration, especially at a relatively early stage of the proceedings, and especially with little evidence to suggest any special reason, such as long association with proceedings, specialist knowledge relating to the case, its facts or other matters, particular vulnerability of the parties to a change of practitioner or the like, is likely to be of little weight.

44. Sydney counsel represented the plaintiffs in the proceedings, as indeed the defendants were represented by Sydney counsel.

45. As to the location of the various parties, the following can be determined from the evidence. Dr Bateman gives his address for official purposes, such as an information given to the Australian Securities and Investments Commission (ASIC), as at an inner suburb of Sydney. It is, in fact, the same address as the registered office of Idameneo which is also the address of its principal place of business.

46. A search of the electoral roll under the Commonwealth Electoral Act 1918 (Cth) showed that Dr Bateman's name but not his address was on the electoral roll. Accordingly, it would appear from s 205D of the Corporations Act 2001 (Cth), that the address given to ASIC is not Dr Bateman's residential address. It is, however, an address where "documents can be served on him" (s 205D(2) of the Corporations Act). The third matter complained of, however, shows a photograph of a beachfront house at Balmoral which is said to be his home and where he and his sons are said in the article to meet on Saturday mornings.

47. The registered office and principal place of business of each of Fairfax Media and Fairfax Digital are in an inner suburb of Sydney. This is also the place of employment of both Ms Wallace and Ms Carson. They both reside in Sydney.

48. Dr Cumpston currently works in a medical practice he operates in a Sydney suburb and also lives in Sydney.

49. Fairfax Media and Fairfax Digital have retained the present solicitors, their usual solicitors "in media law matters" with some previously irrelevant exceptions since 2008. Their office is in Sydney. At the time, they knew the proceedings had been commenced in this Court. They have also retained Canberra agents.

50. The evidence showed that the defendants considered that they would be likely to call Dr Cumpston, three other medical practitioners previously employed at medical centres in New South Wales operated by Idameneo. The defendants also considered that they "may call, if necessary" Ms Wallace and Ms Carson. All of these persons reside in New South Wales.

51. The defendants would also call evidence from two experts in relation to the claim for special damages by Idameneo and in respect of its operation of Medtech Software.

[t]he Defendants intend to retain the said experts based in Sydney for reasons of convenience, including the fact that an inspection of the Medtech software in operation may be necessary and would most conveniently occur at one of the Second Plaintiff's medical centres in Sydney.

53. There was no evidence as to whether there were suitable experts who could be retained in this Territory or whether the inspection could be carried out at one of Idameneo's medical centres in this Territory.

54. The defendants estimated that the additional costs for travel, accommodation and other expenses for the defendants' legal representatives and witnesses for the trial would be $47,160 to $55,710. No doubt, if the proceedings were transferred to the NSW Supreme Court and the plaintiffs continued to retain their Canberra solicitors, there would be travel and accommodation costs incurred by the plaintiffs.

55. The evidence showed also that Dr Cumpston and Ms Wallace would suffer particular inconvenience were the trial to be conducted in Canberra.

(a) in relation to Dr Cumpston, that he has a medical practice with 3,000 patients and is on call for emergency or urgent medical issues, requiring him to be within "close vicinity" to his practice. There was no information about the availability of a locum for such a purpose or how he would manage the inevitable absence from the close vicinity of his practice were he to give evidence in the Supreme Court in Sydney;

Dr Cumpston has an eleven-year-old child with an ex-partner and he spends six days a fortnight with the son, requiring him to be at home or near to the child's school and day care during that period. He also has a five-year-old child, a four-year-old child and a two-year-old child with his ex-wife and spends each Wednesday to Sunday with them, requiring him to be home or near their school and day care during that time.

Dr Cumpston would be under business, financial, family and personal strain were he to have to be in Canberra for the duration of a trial, though there would clearly be some degree of such strain were he to be at the Supreme Court of New South Wales for the duration of the trial there.

(b) Ms Wallace has two children, a two-year-old and a four-year-old. Her husband is required to commence his work at 6:00am, requiring him to leave home at 5:30am. Ms Wallace takes the children to day-care at about 9:30am daily. There would be, it is said, difficulty in arranging for child care from the time her husband leaves for work until they can commence child care each day were she to be required to attend the trial or any part of it in Canberra.

57. I had no evidence about any of the witnesses that the plaintiffs were proposing to call and, therefore, no information about their residential or business location.

58. The defendants also produced extensive details of the publication of The Sydney Morning Herald in which the two articles were published. The sales figures showed that the distribution was approximately 74% in Sydney metro, 21% in the rest of New South Wales and 2% in this Territory. Readership estimates were 738,000 (97.36%) in New South Wales, 12,000 (1.58%) in this Territory and 8,000 (1.05%) in Queensland. There was very much a smaller distribution, though up to some hundreds in some cases, in the other States and Territories.

59. As to the publication on the various websites, the picture naturally varied. On the NSW website, the first article showed 32,240 (74.61%) page impressions (sometimes called "downloads" or "hits") from New South Wales, and 1,744 (4.04%) in this Territory. There was a similar percentage access for the three parts in which the second article was published on the website but only with a total of 1,013, 5,906 and 1,135 hits respectively. The highest number of page impressions on the other related websites was 1,473, the next highest 826 and the next being less than 150, most substantially less.

60. There is no doubt that the vast majority of readers came from New South Wales and the vast majority of sales of The Sydney Morning Herald came from the Sydney metropolitan area.

61. There are no pending proceedings between the relevant parties and, despite the statistical material I have just set out, this Court has, apart from cross-vesting of jurisdiction, full capacity to hear and determine these proceedings.

62. Thus, under s 5 of the Cross-Vesting legislation, the ground on which the application is based is that set out in s 5(2)(b)(ii)(C) or 5(3)(b)(iii) of the ACT and NSW Acts respectively, namely, the interest of justice.

63. A decision of the court as to the transfer or removal of a proceeding under the Cross-Vesting legislation cannot be the subject of an appeal: s 13. There is a good reason for this, for such appeals would disrupt and delay proceedings and cause expense, especially to impecunious litigants. Nevertheless, it does mean that there is precious little appellate guidance on the approach to the application of the Acts. There are many decisions, but they tend to become a "'wilderness of single instances' through which no clue of guiding principle [is] found" (per Griffiths CJ in Fraser v Victorian Railways Commissioners [1909] HCA 5; (1909) 8 CLR 54 at 58) or, worse, the "quagmire of single instances" on which principle might founder (per Windeyer J in Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610 at 654).

64. To some extent this has become true, with stark differences in various jurisdictions. For example, Cavanough J commented in O'Donnell v Nage Holdings Pty Ltd

[2013] VSC 115 at [13], that not a single application in Victoria for a transfer has succeeded. That is not strictly true. In Ewins v BHP Billiton Ltd

[2005] VSC 4 (Ewins v BHP), Gillard J cross-vested the proceedings to the Supreme Court of South Australia. Nevertheless, not many at all are granted. In New South Wales, however, transfers are regularly made. See, for example, British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230; Kok v Sheppard

[2009] NSWSC 1262 and Reid v Wright [2012] NSWSC 1149; cf Woolworths Ltd v Walker [2012] NSWSC 914.

65. In this Territory, proceedings have been transferred (e.g. Pugh v Morrison

[2011] ACTSC 44) and transfer has been refused (e.g. Windschuttle v ACP Publishing Pty Ltd [2002] ACTSC 64).

66. Nevertheless, the issues have come before appellate courts in specific ways. Thus, in New South Wales, two cases were heard in the Court of Appeal through a removal under s 51 of the Supreme Court Act 1970 (NSW) into that Court of the cases from a Division of the Supreme Court where it would ordinarily be expected that they would have been heard and determined: Bankinvest AG v Seabrook (1988) 92 FLR 153 at 158 (Bankinvest) and James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at 364; [22] (James Hardie). One case has reached the High Court which has, of course, constitutional jurisdiction to hear cases appealed from the Supreme Court of a State under s 73(ii) of the Constitution: BHP Billiton Ltd v Schultz

[2004] HCA 61; (2004) 221 CLR 400 at 433; [55] (Schultz). In this jurisdiction, the Full Court, although not strictly an appellate court, heard an application which had been referred to it under s 13 of the Supreme Court Act 1933 (ACT):

Dawson v Baker (1994) 123 FLR 194 at 198.

67. It is, of course, not necessary for these reasons to address the details of the findings of these various courts. For the most part, they have, in any event, been resolved by the High Court in Schultz. It should be noted that while Gleeson CJ, McHugh and Heydon JJ, who delivered a joint judgment, would have dismissed the appeal, which the Court, however, allowed and who were, therefore, strictly in dissent, their Honours' reasoning was, for the most part, consistent with the reasoning of the other four justices, in the majority, who each wrote a separate judgment, though, in his Honour's brief separate judgment, Hayne J agreed with the reasons of Gummow J.

68. It is sufficient to summarise what I understand to be the law as follows:

(a) The Cross-Vesting legislation requires that the court to which the application for a transfer is made must exercise the power of transfer whenever "it appears" that it is in the interests of justice that it should be exercised: Schultz at 421; [14] (per Gleeson CJ, McHugh and Heydon JJ);

(b) The power to exercise the power to transfer is not a discretionary power but a mandatory obligation when the interests of justice are determined. No question of discretion arises: Schultz at 434-5; [62]-[63] (per Gummow J); 481; [222] (per Callinan J).

(c) The court is not concerned that a court in which the proceedings have been commenced, having a prima facie duty to exercise jurisdiction which has been regularly invoked, asks whether it is justified in refusing to perform that duty. Rather, the court is required by the Acts to ensure that cases are heard in the forum dictated by the interests of justice: Schultz at

421; [14] (per Gleeson CJ, McHugh and Heydon JJ).

(d) The plaintiffs' choice of forum, indicated by commencement of the proceedings, does not require any specific emphasis or weight to be given to it: Schultz at 425; [25] (per Gleeson CJ, McHugh and Heydon JJ);

439; [77] (per Gummow J); 466; [170] (per Kirby J); 492; [258] (per Callinan J). The reasons why a plaintiff has commenced proceedings in a particular court might or might not be concerned with a matter related to the interests of justice: Schultz at 421; [15] (per Gleeson CJ, McHugh and Heydon JJ).

(e) It is not necessary that it should appear to the court hearing the application that the court in which the proceedings have been commenced is a clearly inappropriate forum. It is both a necessary and sufficient criterion that it appears to the court hearing the application that, in the interests of justice, one court is more appropriate than the other court: Schultz at 419-20; [7]-[11] (per Gleeson CJ, McHugh and Heydon JJ); 439; [77] (per Gummow J);

463-6; [161]-[168] (per Kirby J); James Hardie at 377; [87]. The court hearing the application is required to decide which is the more appropriate court upon a fair balancing of all the factors defining the relevant interests of justice: Schultz at 424; [22] (per Gleeson CJ, McHugh and Heydon JJ).

(f) The interests of justice are not the same as the interests of one party and there may be interests wider than those of either party to be considered. Even so, the court should consider the interests of the respective parties which might in some respects be common with the interests of justice, such as, for example, in containing costs and promoting efficiency, and in other respects be conflicting: Schultz at 421; [15] (per Gleeson CJ, McHugh and Heydon JJ).

(g) There is debate about whether there is an onus on an applicant for a transfer. There are appellate statements to the effect that there is no onus: Bankinvest at 167; Schultz at 437; [71] (per Gummow J). In Ewins v BHP at

[22]-[23], Gillard J pointed out that though in Schultz, Gummow J, with whom Hayne J agreed, held there was no onus, no other member of the court mentioned the matter. In Bankinvest at 157, Kirby P (as his Honour then was) reserved his opinion on the question of onus. In James Hardie at

380; [100], Mason P, with whom Spigelman CJ and Priestley JA agreed, as to this matter, held that while there may be no onus on an applicant, the applicant must carry at least a persuasive onus. Accordingly, Gillard J in Ewins v BHP at [23] held that what Gummow J in Schultz had said:

does not represent the views of a majority of the High Court, and although persuasive, I am not prepared to accept that it represents the law. Many judges have referred in the past to the burden and the general view is that an applicant does carry a burden. However, as in most contested litigation where the burden of proof rarely plays a part, in the vast majority of cases seeking a transfer it will seldom be of any importance. Nevertheless, where the factors favouring a transfer and those against are equal, the burden of proof will have a part to play.

That approach, however, has not been universally followed, even in Victoria. In McLeod v Munro [2005] VSC 375 at [37], Dodds-Streeton J disagreed and found the observations of Gummow J "persuasive", as did Whelan J in Slater & Gordon Pty Ltd v Porteous [2005] VSC 398 at [21] and Harper J in Holt v Forehan [2006] VSC 148 at [14]. Robson J in Irwin v Queensland

[2011] VSC 291 at [14] n 16 considered that "in the absence of binding authority to the contrary, I should follow the observations of Gummow J with whom Hayne J agreed." This latter approach seems to have been followed in other jurisdictions: Australian Zircon NL v Austpac Resources NL

[2010] WASC 166; (2010) 243 FLR 423 at 429; [33]; Cini v Pets Paradise Franchising (SA) Pty Ltd [2008] SASC 287; (2008) 102 SASR 177 at 184; [9]; Reid v Wright [2012] NSWSC

69. It seems to me that the debate as to the existence of an onus may be arid. The court hearing the application has a duty to transfer if it finds that it is in the interests of justice. That will depend on the court making a finding about the more appropriate forum. If the court does not make such a finding, it has no power to effect such a transfer. That the factors favouring and against a transfer are equal does not require reference to an onus for resolution. It would seem to me that in that case, the court could not find that one court was a more appropriate forum and thus order a transfer. In that sense, if there is no more appropriate court, the plaintiffs' choice will prevail. On the other hand, the applicant must at least bear some obligation to bring forward and refer to matters that are designed to assist the court to find that the court to which the applicant seeks that the proceedings be transferred is a more appropriate forum. This seems to accord with the views of Robson J in Irwin v Queensland at [14] (f). See also Valceski v Valceski [2007] NSWSC 440; (2007) 210 FLR 387 at 411; [70].

(h) The more appropriate court will be the court that is the natural forum as determined by connecting factors to that forum: Schultz at

419-20; [10] (per Gleeson CJ, McHugh and Heydon JJ); Valceski v Valceski at 411; [69].

(i) Each case depends on its own particular facts: Eden v Amaca Pty Ltd [2007] VSC 374 at [10].

(j) The court is not required, indeed probably should not, involve itself in a comparison of the respective legislative policies of the jurisdictions which are reflected in the relevant statutory enactments that make provision for the law or procedure involved in the proceedings: Schultz at 426; [26] (per Gleeson CJ, McHugh and Heydon JJ).

(k) The court hearing the application has been urged to adopt what is called a "nuts and bolts" management decision as to which court, in pursuit of the interests of justice, is more appropriate to hear and determine the dispute brought by the plaintiff: Schultz at 421; [13] (per Gleeson CJ, McHugh and Heydon JJ) quoting Bankinvest at 154. This is, perhaps, what Young J (as his Honour then was) suggested in Hayward v Barratt [2000] NSWSC 708 at

[2] to be "a case management exercise to see what would be the best order to make to facilitate the trial of the litigation." That is to say, justice "is not disembodied or divorced from practical reality": Schultz at

421; [15] (per Gleeson CJ, McHugh and Heydon JJ).

(l) Relevant connecting factors include matters of convenience and expense such as the availability of witnesses, the places where the parties respectively live or carry on their business, especially if relevant to the issues, and the law regulating the relevant facts in issue: Schultz at

422-3; [18]-[19] (per Gleeson CJ, McHugh and Heydon JJ). See also Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 478; Dawson v Baker at 207-8 (though some factors there listed are no longer relevant following Schultz); Valceski v Valceski at 411; [69]; Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394. Nevertheless, as Kirby P said in Bankinvest at 156, it is necessary, despite the test of connecting factors referred to in some decisions, to take a broad approach to the interests of justice that reflects the particular circumstances under consideration.

(m) In many cases, there will be a preponderance of connecting factors with one forum so that the answer to the question of which is the more appropriate forum is clear. In other cases, there may be significant connecting factors with both fora, that where the proceedings have been commenced and that to which the applicant wishes them to be transferred. Some of the factors will cancel each other out. The court will often be required to weigh up the considerations of cost, expense and convenience, especially when they conflict, but this is not an unknown task for a court: Schultz at 423; [19] (per Gleeson CJ, McHugh and Heydon JJ).

(n) If the action is between two individuals, and the plaintiff and defendant live in different areas, there may be no reason to treat the place where either live as determinative, although it is ordinarily the place where the defendant lives - or perhaps more strictly, where he or she can properly be served with originating process - that is important to establish jurisdiction: Schultz at

Bateman and Idameneo (No 123) Pty Limited v Fairfax Media Publications Pty Limited and Ors [2013] ACTSC 72

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Bateman and Idameneo (No 123) Pty Limited v Fairfax Media Publications Pty Limited and Ors [2013] ACTSC 72 (26 April 2013)

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Legislation Cited (16)

Cases Cited (27)