Gutnick v Dow Jones & Co Inc [2001] VSC 305

Gutnick v Dow Jones & Co Inc [2001] VSC 305 - VSC 2001 case summary — Zoe

The defendant Dow Jones & Co. Inc. (hereinafter called "the defendant" or "Dow Jones" or "the applicant/defendant") is the publisher of the Wall Street Journal, an internationally known and respected financial daily newspaper, much concerned with information concerning United States stocks and shares and other events that might affect their prices on the American market. The defendant is also the publisher of Barrons Magazine which, according to Mr G. Robertson, Q.C. who with Mr T. Robertson appeared on behalf of the defendant, is even more obsessively concerned with those matters. Mr Robertson also claimed that the plaintiff, Mr Joseph Gutnick, was a prominent business identity with a reputation in philanthropic, sporting and religious circles and that he was an international entrepreneur with substantial connections in the United States. The edition of Barrons of Monday, 30th October 2000 (which appears likely to have come out on Saturday, 28th October) contained an article written by a journalist working for the defendant, one William Alpert, headed "Unholy Gains" and sub-headed "When stock promoters cross paths with religious charities, investors had better be on guard." The first page of the article also contained a large photograph of Mr Gutnick. The article of some 7,000 words contained a number of different photographs of different persons including one of Nachum Goldberg. Barrons is a weekly with a substantial circulation in the United States primarily among investors and those interested in money matters. It was claimed without objection in the hearing before me that this relevant copy of Barrons Magazine sold 305,563 copies. A very small number of the actual print copy of Barrons came to Australia, but a number of them were sold in Victoria. Barrons, however, is customarily put OnLine and this article went on the defendant's Website on Sunday 29th October. The defendant Dow Jones operates from its so-called corporate campus in New Jersey where its Website is located. There is, as I understood it, no Website in Barrons' name and the Website is in the name "wsj.com". This is, however, a subscriber Website with some 550,000 subscribers. It was claimed in the opening by Mr Robertson that the defendant could not identify where they all were but it was conceded that 1700 of them paid by way of credit cards from Australia.

[15]

It went on to allege that the reasonableness of the suspicion that religious charities had been misused in order to manipulate stock prices derived from seven matters dealt with in the article. These included (a) irrational predictions of wealth made by religious leaders promoting the sale of shares in the plaintiff's company; (b) profits taken by a U.S.-based charity as a result of selling its shares in a Gutnick company shortly before the price collapsed; (c) trading record of ADRs in five companies promoted by the plaintiff; (d) evidence of the plaintiff's influence over trading in plaintiff-related stocks by Colel Chabard and another U.S. charity; (e) the plaintiff's business association with Judah Wernick, a broker who used religious charities in stock frauds; (f) involvement of close-knit religious communities in Brooklyn (Whiting Inc.) in supporting stocks promoted by the plaintiff and manipulating the share prices of those stocks; and (g) a claim that several cheques made out to the plaintiff turned up in the account of a bogus religious charity run as a front by Nachum Goldberg who was convicted of tax evasion and the claim that in an intercepted telephone call "Goldberg referred to the plaintiff in words that were taken to mean that the plaintiff was a big customer". I will later refer to this exposition when dealing with the issue of Polly Peck raised by the applicant/defendant and also with yet another formulation of the claimed sting and substance of the article. Thus the above is the summation of the multiple themes embraced by the article as formulated by the defendant in this case, although their place in the submission to which I have referred might be seen as by way of giving particulars of the common sting referred to. Mr Robertson was undoubtedly right when he said that those parts of the article upon which the Victorian proceeding are founded as being libellous are a relatively small part of the article as a whole. This is one of the reasons why the connection of the part of the article sued on with the balance of the article, other than to make damaging statements about Gutnick's conduct unrelated to stock market schemes and manipulation, is doubtful. The were nearly four full pages of the article (including photographs and side bars) of a six-page examination of the plaintiff's activities before the Goldberg connection was arrived at.

[17]

The affidavits of Dr Clark and Mr Hammond attempted to trespass on to the area of the legal conclusion as to how and when, for the purposes of the law of defamation in relation to the Internet, publication took place or occurred. Objection was raised and the offending parts withdrawn. Their affidavits are illuminating and helpful in addressing the technical process whereby a document finds its way from one computer to another via the World Wide Web. It would appear that there are three Internet services: one the so-called push service, for example, e-mail; secondly, Usenet method whereby a person may access the service on meeting the conditions of the provider (the I.S.P., that is, the Internet Service Provider) of the information, e.g. payment coupled with a password or other matters, and, three, the World Wide Web whereby the technical process of a document finding its way is considerably expanded. The affidavits establish that the Web does comprise computers which hold and send information (using "Web server" software) and other computers which request and receive information by using "Web browser" software. Thus, according to Clark, the originator of the Web document uploads into the storage area managed by the Web server, the person who wants the document must issue a request and, in order to make a request, the requestor uses a Web browser specifying the Website address. The server then delivers the document, so that it may be finally downloaded. Thus it was put that the delivery of electronic documents will only occur if the person searching for the document sends an electronic message to locate it on the relevant Web server. This is contrasted, for example, with other Internet features such as e-mail which is not dependent upon a prior request having been made. This led to the use in those affidavits and, one may say with no offence, heavy reliance by counsel for the plaintiff on the pull-push technology differences as being critical. The purpose of all this was to provide a technical basis for alleging that the process of extracting the particular article from the Dow Jones Web server involves requests for actions by persons "over whom Dow Jones has no control". This is by no means wholly accurate as Dow Jones has programmed its computers (see the reference to the Accrue system in Sichler's evidence) to decline requests e.g. for Barrons in the absence of a provided password and also to dedcline even with a password if the requestor is delinquent in the payment of his or her outstanding account at that time. This is a subscription Website. The information on the New Jersey Web servers handling Barrons OnLine does not go on to the World Wide Web from that server. It is not necessary for me to refer to some of the technical explanation of the use of search engines to aid in searching out for information.

[50]

Reliance was placed on a number of other cases to which I do not propose to make extended reference. See Toomey v. Mirror Newspapers Ltd.[26] (a decision of Hunt, J., a greatly experienced defamation judge), following by Webb v. Bloch[27]; Jones v. Amalgamated Television Services[28] (the same judge stating "Publication takes place where an imputation defamatory of the plaintiff has been communicated to some person other than the plaintiff himself", not founding any part of his reason upon delivery simpliciter but upon communication); Fleetwood v. Curley[29]; Amman v. Damm[30]; Jones v. Davers[31] (slander spoken in a language unintelligible to the auditor is not actionable); Sadgrove v. Hole[32] (with respect to a postcard sent by post, it was stated by the A.L. Smith, M.R., "It is clear that he did not prove any publication of a libel on him until the postcard got into the hands of the builder, because then for the first time could any knowledge arise as to the person to whom the postcard referred.); Bata v. Bata[33] (a case of a defamatory circular letter posted abroad was addressed and published to third parties resident in London in which it was stated by Scott, L.J., citing from Lord Esher in Hebditch v. MacIlwane[34]: "The material part of the cause of action in libel is not the writing, but the publication of the libel"); Lee v. Wilson & Ors[35] per Dixon, J: "It is the publication, not the composition of a libel, which is the actionable wrong. Often the person receiving the publicity is not the writer. Injury done by libel arises from the effect produced upon its readers."; Gambrill v. Schooley[36] (a case concerned with the dictation of a defamatory matter to a confidential stenographer where Pearson, J. relied upon statements made in the then current edition of Odgers on Libel and Slander to the effect that publication was the communication of the defamatory words to some third person going on to state that the writing of a defamatory letter coming into the hand of a third person to be read who does not understand and cannot read the language, does not constitute publication of the libel. After referring to the statements of Lopes, L.J. in Pullman v. Walter Hill[37] Pearson, J. went on to say

[58]

Mr Robertson relied on the unreported decision of Simpson, J. of the Supreme Court of New South Wales in Macquarie Bank v. Berg[44], her Honour there expressing the view that it was plain that once published on the Internet, material might be transmitted anywhere in the world as an Internet connection. It must be said there was no evidence about this before Simpson, J. and, having regard to the evidence I have heard and read, the accuracy of the statement may be doubted, although it would seem that her Honour was using the word "published" in a general way without having in mind at all the Internet subscription service here involved. As I have earlier indicated, this case is not concerned with the World Wide Web because Dow Jones only puts it on for subscribers or trial subscribers. It limits access and thereby limits it from the world. Moreover, if any contractee to Dow Jones downloads, that reader could not put the material on his, her or its Website on the World Wide Web without breach of copyright; at least it must be said that that appears to be the better view.[45] Moreover, that case was an application of an injunction, a discretionary remedy her Honour declined to grant in the circumstances prevailing. The refusal to grant an injunction which directly stifles free speech is unremarkable in the law of defamation. The claimed stifling of it by the virtue of the risk of awards for damages for defamatory statements, which is a feature, in my judgment, of the defendant's arguments, is a very different matter. It is seems to be true that her Honour did address the undesirability by way of injunction superimposing the law of New South Wales in a case of an Internet publication in every State, Territory and country of the World. This view was warmly embraced by Mr Robertson for the defendant because it accords with the defendant's policy imperative to have its rights determined in a United States in court and in no other place. The opinions of her Honour were not, however, necessary for her decision, which was based upon sound principles in relation to the caution with which injunctive relief should be given, particularly at an interlocutory stage. Although it is not absolutely clear, it also appears that the application for injunctive relief was made ex parte.

[60]

Mr Sher appeared to agree that the position of the defendant was similar to the operator of a library, which publishes a book when it allows a member of the library to borrow the book from the library. See Vizetelly v. Moody Select Library[46], a case relied on in a related respect by the defendant. He also appeared to accept that the position of the library is an accurate analogue to the placement of files on a Website served by the defendant and making them available for downloading by its subscribers. I question, however, the potency of the library analogy. Mr Robertson had, in effect, argued that in the Internet context a customer was like a customer with a library card who went to New Jersey to borrow the book, borrowed it in New Jersey but took it home unread and read it in Victoria. This was a key element in his argument. To my mind, however, it is just as persuasive to say that in the case of the Internet the library subscriber has entered into an arrangement with the library that upon the request being made by the subscriber for the relevant book, the library agrees to send it to him in Victoria, rather like the delivery by a mobile library based in Sydney to a New South Wales country town. Within this context the plaintiff was seeking to establish that there could not be any question of innocent dissemination arising, because the Dow Jones controlled the whole process of publication from the procuration of subscribers in the composition of the article and its placement on the server. It was Dow Jones, he argued, which was responsible for composing the article, using it and making it available . The real point of this part of the plaintiff's case was that the publication of the article to persons in Victoria who read it was the intended natural and probable consequence of all of the acts of the defendant alleged in paragraph 3AA of the further amended statement of claim and that the defendant was therefore liable for the publications which occurred in Victoria. He said it was entirely foreseeable and to be expected that the article about the plaintiff, a prominent Victorian resident, would be published in Victoria and that in publishing the article the defendant was author, editor, printer, publisher and librarian. He dismissed the attempts in the Hammond and Clarke affidavits to assert that there was no publication in Australia but publication in New Jersey (I have already indicated that those witnesses are not in a position to express opinions of that kind) as completely wrong and unsustainable because no defamatory meaning was conveyed to the minds of anyone in New Jersey and no damage occurred in New Jersey. It was also submitted by the plaintiff that the Court could infer that with respect to the print editions that they were read by the subscribers. This seems to me to be reasonable as it seems to be unlikely that anyone purchasing such a large magazine at such cost would not bother to read it. There is sufficient evidence for the present purpose of the supply of print copies to five or more subscribers.

[105]

The plaintiff did not have to comply with Order 7 in relation to amendments to the statement of claim, so long as they were made in accordance with the rules when each amendment was made. The subsequent amendments to add the cause of action founded upon the print publications does not, in my judgment, impugn the validity of the service in respect of the Internet publication. The argument seemed to be that service was invalid because it did not include the claim in relation to the print publications added later and that as a consequence the technicalities of the Rule were not complied with, and the technicalities were important. This was underpinned by the suggestion, as I understood the submission, that the rationale for the argument for the requirement that all causes of action, ultimately sought to be relied on, had to be included in the original long-arm jurisdiction cause of action to enable the defendant to decide whether it would submit to the jurisdiction, or ignore it, or make an application perhaps of a kind here now being made. I regard this argument as wholly without merit. The defendant has barely addressed argument in relation to the print publication the opposition to which will be founded on all of the standard defamation defences and some arguments about damages. 7.02 requires the originating process "to contain an indorsement stating the facts and the particular paragraph of Rule 7.01 relied upon in support of such service". The indorsement is not intended to be a full statement of claim and its purpose is to give the defendant an appropriate opportunity to determine whether to object that the Court ought not to hear and determine the proceeding on the ground that the ground of the claim is not one within Rule 7.01(1). I view the indorsement on the writ in this case as containing all the relevant material facts. It made reference to the appropriate sub-paragraphs of Rule 7.01. It could hardly be doubted by the defendant that it was being sued for defamation in respect of publication and damage in Victoria arising from the article "Unholy Gains". The indorsement referred to the two relevant provisions of Rule 7.01(1), that is (i) and (j). On either basis, as I find, the proceeding was founded on a tort committed within Victoria and alternatively the proceeding is brought in respect of damage suffered wholly or partly in Victoria caused by a tortious act and omission occurring in New Jersey. The whole of the submissions made by counsel for the defendant make it clear that the basis upon which the suit was founded was well understood. It was seized on in order to obtain a ruling from a superior court as to the issue of the place in which publication takes place on the Internet. Mr Robertson's benign references as to the thwarting of his objective in that respect in Berezovsky v. Michaels[67] (because of the want of any technical back-up evidence) makes it clear how well it was understood in this case what the nature of the plaintiff's claim was. Once the writ was served on the defendant, not in dispute, the plaintiff was entitled under the Rules to amend the statement of claim and add other causes of action. He did this without leave pursuant to Rule 36.03 on 21st February 2001.

[112]

"Publication must be taken as a whole. It follows from the fact that the context and circumstances of the publication must be taken into account that the plaintiff cannot pick and choose parts of the publication which, standing alone, would be defamatory. This or that sentence may be considered defamatory, but there may be other passages which take away their sting. If `in one part of the publication something disreputable to the plaintiff is stated, but that is removed by the conclusion, the bane and the antidote must be taken together'. If that were not so it would be impossible to refute charges made against another person, since the refutation must, in practice, refer to the charges. In the case of a newspaper article or television or radio broadcast the defendant is entitled to have read as part of the plaintiff's case the whole of the piece from which the alleged libel is extracted. In Charleston v. News Group Newspapers Ltd the defendants published in their newspaper a photograph in which the heads of the plaintiffs, actors in a well-known soap opera, had been superimposed on the bodies of two persons engaged in sexual intercourse and which was accompanied by large headlines referring to the series in which they played and the characters portrayed by them. The article as a whole made it plain that the plaintiffs were in fact the victims of persons in Australia who had marketed a pornographic computer game from which the photograph had been taken. It was held that the article as a whole was incapable of conveying to the hypothetical reasonable reader the meaning that the plaintiffs had engaged in the conduct portrayed, or had cooperated in the creation of the photograph, despite the facts that many readers of a tabloid newspaper might have drawn such a conclusion by failing to read the article as a whole and that the House of Lords expressed sympathy with the plaintiff's position. Where the alleged defamation takes place in a broadcast it is perhaps even more likely that viewers or listeners may have missed the antidote, but the rule is the same and the defendant is entitled to have the programme taken as a whole.

[146]

Before moving to examine the features argued either way on this issue, I propose to deal with one of them discretely. That is the question that essentially the defendant claims that as a matter of justice (and it claims that it would be an abuse of process if it were not) it ought to be able to rely upon the whole of the article, and upon those meanings which it contends it is capable of bearing and which it seeks to justify. The so-called "common sting" was first evoked in Polly Peck v. Trelford[92]. I do not propose to re-tread well-worn paths concerning this so-called defence. It was in effect condemned as contrary to the common law by Brennan, C.J. and McHugh, J. in Chakravarti v. Adelaide Newspaper[93]). The other members of the court did not find it necessary to consider these aspects of Polly Peck directly in disposing of the appeal. Ultimately, the Court of Appeal in the State of Victoria, in David Syme v. Hore-Lacy a decision which binds me, articulated restrictions upon the Polly Peck precept, at the same time endorsing the obligation of a defendant seeking to justify to give particulars of a justification. Essentially, the Court of Appeal put a plaintiff in a defamation action and the defendant to the action in the same position, holding that a plaintiff in a defamation action who pleads a false imputation or innuendo can only succeed on that pleaded meaning or some other meaning which is a variant on, or not substantially different from the pleaded meaning which is no more injurious or serious than the pleaded meaning. The majority also held that a defendant in a defamation action who pleads justification to allegations of imputation or innuendo is confined to justifying the meanings pleaded by the plaintiff or some other meaning which is a variant or not substantially different from a pleaded meaning and which is no more injurious or serious than a pleading meaning. Moreover, the majority held that where a defendant intends to justify a meaning of an imputation or innuendo which differs in the permissible sense from the meanings pleaded by the plaintiff, the defendant must plead that meaning with the necessary particulars of the facts on which the justification is based.

[150]

In my view, this creates a difficulty for the Court at this point of time. I have already indicated that I have formed the view for the present purpose (although it will not necessarily bind the trial judge) that that part of the article concerning the money-laundering issue in Australia and Gutnick's connection with it are a separate charge and capable of being sued on, as they have, separately. However, until there is there is a greater degree of clarity as to what the alternative meanings or sting sought to be relied on are, one suspects that counsel for the defendant believes that the way in which the defence will be put will not be able to fulfil the requirements of the law of the State of Victoria with respect to the Polly Peck defence because, to use his colourful phrase, the Court of Appeal in the State of Victoria "had strangled poor Polly to death". He used the substantial modification of the Polly Peck defence as a basis for saying that his clients were deprived of a defence which they would have in the United States of America, a matter as to which I am by no means convinced, notwithstanding the provision of an affidavit of an American attorney Laura Handman. Even if it were right, the complaint of abuse of process and injustice must fall on deaf ears as far as I am concerned, bound as I am by the decision in Hore-Lacy. In any event there is a considerable body of legal and judicial opinion that the Polly Peck defence frequently occasions notable injustice, permitting as it does unrestrained recital of a range of deplorable activities laid at the plaintiff's door under the rubric of justifying the claimed sting. There has long been concern that the defendant is entitled to go beyond the meaning asserted by the plaintiff and seek to justify its own. In Reynolds v. Nationwide News Pty Ltd.[94] in the Supreme Court of Western Australia, Hasluck, J. appeared to support the principles articulated in Hore-Lacy. Reynolds was a case in which the plaintiff chose to proceed in respect of that part of an article concerning allegations of bribery, extortion and wrongful dismissal and went no wider. The court concluded that although the imputations pleaded by the plaintiff were confined to specific matters, those matters were found within an article where reference was made to wider issues. The court concluded that the defendants were not entitled to plead the alternative meanings sought to be relied on. Furthermore, it concluded that the imputations pleaded by the plaintiff were severable and distinct from the matters of wider concern sought to be pleaded by the defendant. Thus the court upheld the application to strike out the Polly Peck plea. In Robinson v. Laws[95] the Court of Appeal of the Supreme Court of Queenlsand (De Jersey, C.J., Williams, J.A. and McKenzie, J.), with reference to the statements of Brennan, C.J. and McHugh in Chakravarti, said to this effect:

[155]

(1) The first point was that the print publication here was minimal compared with the United States. The plaintiff says that it is the quality not quantity of publications that must be examined and that in any event the issue is irrelevant since the plaintiff complains only of publication in Victoria and has given an undertaking not to sue elsewhere. Nevertheless many authorities indicate that the extent of publication in the objected to forum is a relevant matter.

(2) The same point was made in relation to the Internet publication. Of 1,700 in Australia, there were 300 or so in Victoria. The same response was given by the plaintiff. Next, that trial in Victoria is inconvenient for the defendant as (a) they are based in New York; (b) they have no operation within this jurisdiction and all of their witnesses in relation to qualified privilege are in the United States. The plaintiff's response is there is a balancing huge inconvenience and cost to him to be forced to go to New Jersey to litigate a tort committed in Victoria which damaged his Victorian reputation.

(3) The defendant also contends that it will have no qualified privilege defence in Victoria mainly because there is no duty or common interest and the decision of the House of Lords in Reynolds (which expanded duty-interest qualified privilege to mass-media) has not been followed in Australia and will not be. Moreover the plaintiff says that if a qualified privilege arises, there is malice in the Horrocks v. Lowe sense and that Alpert would have to give evidence of his belief that the Goldberg imputations were true. There is no suggestion of this. Indeed, the plaintiff says it has never been said or stated in Court that the defendant would justify the Goldberg imputations, despite a generalized statement that everything is in issue. Moreover the plaintiff argues that there is no evidence that can be called to support the objective truth of the article and that the alleged witnesses in the first Reidy affidavit would therefore be unable to give relevant evidence.

(4) The plaintiff contends that the only excuse proffered for Alpert not coming to Australia is that he is busy, an unacceptable excuse without weight. The defendant contends the plaintiff has substantial connections with the United States. The plaintiff responds that his connections with Victoria are greater, that he grew up in Victoria. He lives here with his wife and children; his business is headquartered in Victoria and that is where his reputation is well known. Furthermore, the plaintiff does not complain of any publication in the United States, will not sue there but claims is entitled to have his reputation in Victoria vindicated by his peers in Victoria.

(5) The defendant contends that it is more convenient to have one single action and to get all the material there under subpoena. The material was not identified. Nevertheless the travelling of witnesses either way and costs are matters relevant to both sides and both jurisdictions. The plaintiff contends that with respect to his claim there were no relevant documents in the United States and that the attempted Polly Peck should not be permitted. It was also said that there is no suggestion made that the Goldberg allegations are true and, even if that were so, all the relevant documents in relation to the Goldberg allegations are located in Victoria. The plaintiff draws attention to the fact that the issues in the case in Victoria would all be very different from those in the United States.

(6) The defendant contends that the question of whether there was recklessness or dishonesty towards the truth can be "better tried" in New Jersey where issues of common law privileges, reasonableness and malice will be "better" tried. It is contended that is where the witnesses, editors, journalists and researchers are and where the jury can deal with whether or not the journalist followed professional standards. The plaintiff contends that no common law or Lange privilege arises but even if it does, it would do so in both places. In any event the only issue of reasonableness will be with Mr Alpert's conduct and any question of the American journalistic standards could not be relevant to the reasonableness of the conduct if the statements should not have been made.

(7) The defendant says that any judgment obtained in Victoria will be unenforceable in the United States. At the least there will be some difficulty in enforcement. The plaintiff says that the main purpose of an award of damages in a defamation case is vindication and damages are secondary in this case. Moreover, the issue is only relevant if the defendant declines to honour any judgment obtained which would be an improper course and damaging to the defendant's reputation world-wide.

(8) The defendant submits that the New Jersey Court could manage it as a Worldwide publication and it is oppressive in the Voth sense to have hanging over the defendant's head the possibility of being sued in one place after another. The plaintiff says he has given an undertaking that no action will be brought elsewhere.

(9) The defendant contends the place where the tort was committed is the forum and that that is the law that will apply. It argues that the substance of the tort is American and if the place of publication is in New Jersey, New Jersey law applies to the Internet publication. The plaintiff simply responds that the place of publication is Victoria as it is where the tort occurred and the commencing point is at the appropriate forum.

(10) The costs and inconvenience of bringing witnesses and evidence to Australia, are identified in Mr Reidy's affidavit, and in relation to the privilege defence and the truth defence, if they are allowed the Polly Peck. There is some substance in this matter and I take it into account. The plaintiff says that the costs and inconvenience to the plaintiff in having to litigate in the United States must be weighed against that and it contends the Polly Peck issue will not be permitted. In my view this is likely but not certain.

(11) That if the Polly Peck defence is not available here, the defendant contends it is oppressive for the defendant to have to fight this case in Victoria, contrasting this to the case of justification and in respect of the whole article which would be admitted in the United States. The plaintiff responds that the law of lex loci delicti is Victoria. Victoria must apply Victorian law. The defendant had the capacity to block publication to Victoria and did not do it.

(12) The plaintiff argues that, not only will the cost of litigating in New Jersey be much greater (contingent fees, witnesses from Australia, weak Australian dollar, etc.), it is probable that the delay in getting this case to trial will be much greater in New Jersey than in Victoria. I am not satisfied that that is so and discount it as one of the relevant features.

[156]

The defendant argued that it would be disadvantaged by trial in Victoria in respect of a defence of qualified privilege. It was not clear as to how this was finally put. Substantial argument was advanced that the decision of the High Court in Lange[96] took a broad view of what might fall within the rubric of discussion concerning government and political matters. This appeared to have been put to suggest that Simpson, J. in Vilo v. Fairfax[97] was wrong in concluding that the decision of the House of Lords in Reynolds v. Times Newspapers[98] was inconsistent with Lange. I do not find it necessary to enter into this debate. Beyond doubt, the High Court's decision has shaped the parameters of the constitutional requirement for freedom of communication, and broadened the scope of qualified privilege. Whether or not the issue here involves a discussion about government and political matters is a matter for another day. The fact that a defamatory statement may be published in the course of that discussion does not necessarily give rise to a defence of qualified privilege[99], but the defendant appears to claim that it does have this defence in respect of the publication here. To that extent, it concedes that it has not lost the juridical advantage. The point appears to be that it is the issue of the reasonableness of the words used that draws in the U.S. jurisdiction. I have already suggested that that issue is not likely to be resolved by evidence as to U.S. journalistic standards but, even if it is, the evidence can be called here, admittedly at greater cost. But Alpert is likely to be called in any event, wherever the trial is. The issue of the defence of substantial justification under New Jersey law was briefly debated but I do not regard this aspect of major significance at this point of time. The defendant has not stated that it will justify the money-laundering claim in Victoria, or, for that matter, in New Jersey. It has not put up a draft defence. I have already indicated that it is open to the defendant to re-vamp its Polly Peck approach when it actually pleads to the statement of claim.

[160]

In the case which he considered, the libel complained of had appeared in a discrete part of an article headline "Saddam's Pal Oscar" in the business magazine "Forbes". I do not stay to examine the facts in that case although I note that it was a case in which those parts of the article which would have appeared to be most defamatory were not relied upon as part of the plaintiff's cause of action (as here). His Honour declined to comment on whether the part of the article sued on (essentially it had been suggested that the plaintiff, through his company, was responsible or involved in the destruction of incriminating documents in order to thwart a relevant inquiry involving a death) was capable of having that defamatory meaning. This is hardly an issue here as it could barely be thought that to accuse Mr Gutnick of being involved with the laundering of money through a convicted money-launderer was other than capable of being defamatory. However, it is important to note in that case the matters that influenced Moreland, J. and he detailed them. In the first place, the article made no reference to England, or the relevant company's English subsidiaries, or the plaintiff's business or personal activities in England. It was wholly concerned with the plaintiff's relationship with Saddam Hussein and Gadaffi. Moreover, the earliest defamatory part was concerned with arson in Texas, that is, involving the destruction of the relevant documents. Next, the libel action referred to in the article was brought in the Texas State Court by the plaintiff against the Texas newspaper, dealing with the very same subject matter dealt with in the article complained of. Third, the plaintiff was an American citizen and not a British citizen. He lived in Houston, Texas. He developed his personal business and his business reputation based in the United States. His company was a major American company and he was the chairman of it. He did not live and had never lived in the United Kingdom. On the other hand, he made frequent trips to the United Kingdom and, as the Judge found, had quite a considerable number of friends and acquaintances both personal and business in England. He specifically stated that the centre of his business and social life remained in the United States, principally in Texas. . In addition, Forbes was an American magazine, mainly read by Americans. It was incorporated in New York and had bureaus throughout the United States, including one in Texas. It was the one in Texas that was involved in the writing and publication. The author of the article lived and worked in Houston, Texas.

[166]

One accepts that the marshalling of individual decisions on the facts of each case is no conclusive aid to a decision in other cases. Nevertheless, I refer to the case of Schapira v Jonothan Ahronson and Ors[101], in which the Court of Appeal, (Gibson and Phillips L.JJ.), examined the set of facts involving the plaintiff who was an Israeli citizen but had been resident in London and was a British citizen since 1985. He had an English wife, his children went to school in England. His father had an Israeli carpet company which, after it went into liquidation, the plaintiff worked for in Israel until 1981 to 1993. Part of that business involved distribution and marketing in the United Kingdom and Europe. The plaintiff had a wide circle of friends and business associates in England. The relevant newspaper, the article which allegedly defamed the plaintiff, had a circulation of just under 59,000 but there were only 141 subscribers in the UK. The plaintiff sued the Israeli daily newspaper for defamation, claiming that an article which reported an allegation by one of the liquidators that the plaintiff had been a party to defrauding the company by purchasing an American company cheaply. There was an associated business proceeding with the libel action. The defendants applied to stay both proceedings on forum non conveniens grounds. The judge at first instance dismissed the application. It was on the hearing of the application for leave that the Court of Appeal dismissed the appeal, enunciating the following principles: (1) the stay would only be granted where the court was satisfied that there was some other available forum having competent jurisdiction in which the case could be more suitably tried for the interests of all the parties and the interests of justice; (2) the burden rested on the defendant to show there was another available forum which was clearly or distinctly more appropriate than the English forum; (3) in considering the question of the appropriate forum the court looked for connecting factors which pointed to some other forum as being that with which the action had the most real and substantial connection for if the court considered there was no other available forum which was clearly more appropriate it would ordinarily refuse a stay. The court acknowledged the principles in Spiliada and the principle concerning foreigners owing no allegiance to the alleged forum who would be put to the inconvenience of having to defend themselves in foreign courts. But the Court reiterated the principles that the jurisdiction in which the tort had been committed was prima facie the natural forum for the determination of the dispute, applying the Albaforth. In that case the court thought justification was likely to be significant in scope, and doubted the likely success of the qualified privilege defence being raised. It also thought the issue of malice would only arise if qualified privilege was permitted to be pleaded. Perhaps more significantly it was stated that:

[172]

In the first place, the publication of the claimed defamatory statement was in Victoria, where it was downloaded and where the print publication was also sold. Second, the plaintiff is a resident of Victoria, has his business headquarters here, his family here, his social and business life here, and seeks to have his Victorian reputation vindicated by the courts of the State in which he lives. Third, the plaintiff is indifferent to the other substantial parts of the article and desires only that the attack on his reputation in Victoria as a money-launderer should be repelled and his reputation re-established. Fourth, the plaintiff has undertaken to sue in no other place in respect of the matters which found his own proceeding. This undertaking destroys at a stroke the defendant's claim that New Jersey is to be the preferred jurisdiction because of its capacity to award worldwide global damages. Quite apart from the effect of the undertaking upon this part of the defendant's case that the USA is the preferred jurisdiction, the legal assertion that worldwide damages could be awarded and would be awarded in the United States, if the plaintiff succeeded, has not been established as a matter of the law of the country to my satisfaction. Fifth, the evaluation of the plaintiff's case must be made upon the basis of the case which has been commenced. As I have indicated, the question of whether or not the defendant might mount an arguable Polly Peck defence here is to be doubted, but it would be going too far to say that one could not be successfully presented. The defence has not yet been filed and it would occasion no surprise if the defendants re-vamped and re-shaped the claimed common sting to fit within the Polly Peck criteria pronounced by the Court of Appeal in Hore-lacy which binds me. Sixth, the juridical advantages which the plaintiff has by suing in Victoria and which would not prevail in the United States appear to be as follows: (a) falsity is presumed in Victoria (and indeed in all Australian jurisdictions) but has to be established by the plaintiff under United States Law and New Jersey law of defamation, and all American States; (b) if it were concluded that the plaintiff was a public figure in the United States (a matter doubted, as I understand it, in the affidavit of Laura Handman but which, if one accepts the claims made by the defendant in the article about his notoriety, is at least a significant possibility), then the plaintiff would be obliged to establish in addition that the article was written maliciously i.e. actual malice as part of his own case.[103] On the other hand, the argument is advanced that the defendant would lose the advantages of those features if the proceeding is tried in Victoria. In a word, the plaintiff loses juridical advantages if he sued in the United States and the defendant would lose the United States juridical advantages if the matter were litigated here. This is not an issue as to which legal system is to be preferred, the assumption being that in both places the relevant law will be understood and applied. I note, however, that since I have determined that the article is published in Victoria, then Victorian law should apply, wherever the case is tried.

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