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

Supreme Court of the ACT|2002-03-06|Before: Miles CJ

1. This is an application by the defendant for an order that the proceedings be transferred to the Supreme Court of New South Wales under s 5(2)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1993.

2. The proceedings were commenced by originating application filed on 19 July 2001. The statement of claim accompanying the originating application alleges that on 11 March 2001 the defendant broadcast a television program throughout Australia defamatory of the plaintiff. The defendant has filed an appearance but has not yet filed any grounds of defence.

4. A transcript of what is alleged to be heard on the program is attached to the statement of claim. The transcript shows that the program is concerned with the administration of the affairs of the plaintiff. The program is alleged to contain a report entitled "Road Rage: The Battle for the NRMA". There are also interviews with various people, disgruntled members in the main.

5. By consent I viewed a copy of the video tape of the program. The events shown appear to have taken place mainly in Sydney.

6. The affidavit evidence shows that the plaintiff is a company incorporated under the Australian Corporations Law and limited by guarantee. It appears to be the successor of another company or entity going back many decades. Its objectives are broadly to promote the interests of motorists throughout Australia. Its membership is confined almost entirely to residents of New South Wales and the Australian Capital Territory. Qualifications for membership however do not appear to be geographically constrained.

7. As at 1 October 2001 there were 1,957,629 "memberships" (individual and corporate members). Through a system of nominated vehicles the plaintiff provides members with breakdown road service and other benefits relevant to the interests of motorists. Under the constitution of the plaintiff the members undertake to contribute no more than $2.10 each in the event of a winding up. There is an annual subscription for members, and membership is terminated for failure to pay the annual subscription. In the event of a winding up the surplus assets are to be distributed to such like institutions as, in the absence of a decision by the membership, "determined by the Chief Judge in Equity of the Supreme Court of New South Wales or such other judge of that Court as may have or acquired jurisdiction in the matter."

8. The headquarters of the plaintiff are in Sydney where it occupies a large and prominent building. There are numerous branch offices throughout New South Wales and the Territory. Market analysts have carried out research into the number of persons who are "linked" to membership with the plaintiff either in New South Wales or in the Territory by individual or joint membership or who hold membership on behalf of someone else, for example, a child. The analysts conclude that there are 117,000 persons in the Territory who are linked to membership of the plaintiff and that 52.33 per cent of persons over the age of 20 years in the Territory are so linked. They estimate that in the Sydney metropolitan area there are 3.308 million persons so linked and that 39.65 per cent of persons in the area over 20 years of age are so linked. Thus the proportion of the ACT population over 20 years of age shown to be connected to the plaintiff by these means is greater than the proportion of that section of the population of the Sydney metropolitan area with similar connection. By another statistical method, the analysts have measured "NRMA member penetration rates by household". In rough terms they conclude that 61.48 per cent of households in the Sydney metropolitan area and 73.08 per cent of Territory households are connected to the NRMA.

9. The plaintiff opened its first office in the Territory in Braddon on 30 September 1970, but it is likely that there were many members resident in the Territory long before that.

10. This all goes to show that whilst the plaintiff obviously has a "bigger" presence in New South Wales, its presence in the Territory is not token and the strength of membership in the Territory, proportionate to the population of the Territory, is substantial. As the winding up of the plaintiff is not in contemplation, the provision for distribution of assets on winding up is of relevance only to confirm that the bulk of the membership and the interests of the plaintiff are in New South Wales and not in the Territory. However, as a representative in the national capital of motorists' interests, the plaintiff is no doubt active in that regard acting as a lobby group in the national political environment.

11. There are detailed provisions in the plaintiff's constitution regarding the appointment and removal of directors. There is provision for a chairman, a chief executive officer and office bearers. There are eight directors elected by and from the members who constitute a Board and who manage and control the plaintiff and its business and affairs. Membership is open to anyone who agrees to being a member and who satisfies such conditions as the Board may determine. If there is evidence of any such conditions having been determined, I have missed it.

12. The defendant, as far as the evidence discloses, is a company which broadcasts and transmits television programs through the channel known in the Territory as WIN. In particular, it broadcasts the current affairs program, the subject of the proceedings, under the general title of "Sunday". The defendant's headquarters are at Willoughby, an inner suburb of Sydney.

13. Mr Mark O'Brien, a solicitor acting for the defendant, deposed to the likelihood that the plaintiff will call at the trial of the proceedings Mr N Whitlam and Mr A Sanchez, both Sydney residents, and that the defendant will want to call 12 identified witnesses, all similarly resident. There will be a likely need to adduce documentary evidence from some or more of those witnesses and from other persons as well as from organisations and bodies such as ASIC.

14. The plaintiff's solicitors maintain an office in Canberra as well as in Sydney. The defendant's solicitors have an office in Sydney but not in Canberra where they act through agents.

15. Clearly, there is a likelihood that to conduct the case in the Territory will be generally more expensive and less convenient than to do so in New South Wales, simply because of the need for most, if not all, of the witnesses to travel further from their houses or places of business to the court and for documents to have to be conveyed over a similar distance.

16. Counsel cited a number of decisions reported and unreported in order to support and to oppose the application. The cases do not need to be referred to in detail. The important thing is the legislation. The Court may make an order transferring the proceedings if it is "in the interests of justice". I would refer only to the judgment of Wilcox J in Bourke & Ors v State Bank of NSW (1988) 85 ALR 61 where his Honour observed at 77 - 78 that in order for the Court to find that it is in the interests of justice for the proceedings to be heard in another court some objective factor must be identified.

17. Since John Pfeiffer Pty Limited v Rogerson (2000) 172 ALR 625, [2000] HCA 36, it is clear that, regardless of whether the proceedings are determined by a New South Wales court or a Territory court, the law of the Territory will govern liability and, if the defendant is liable, the quantum of damages in respect of publication in the Territory. The law of New South Wales will govern the same issues for publication in that State. As far as jurisdiction or choice of law is concerned there is nothing to choose between the Supreme Court of New South Wales and this Court.

18. However, these considerations alone do not demonstrate that it is in the interests of justice for the proceedings to be terminated in this Court and transferred to the Supreme Court of New South Wales in order to continue in that Court.

19. Counsel for both parties have drawn attention to the differences in procedure between the two courts. In New South Wales juries decide the double issues (if contested) of whether the matter complained of is defamatory of the plaintiff, that is whether it identifies the plaintiff, and, if so, whether the matter complained of tends to lower the reputation of the plaintiff. If the jury finds for the plaintiff on both issues then the proceedings continue before a judge who considers whatever defences are raised, such as justification, fair comment and privilege. If the defences fail, the judge assesses and awards damages. There is accordingly in New South Wales a "split" hearing between the issues to be tried by the jury and the issues to be tried by the judge. In my view, that procedure does not necessarily mean a saving in costs to the parties (or to the public purse). On the contrary, a trial of all issues at one continuous hearing, as is the practice in this Territory and in at least most other Australian jurisdictions is, in my view, likely to be had at a lower cost. There is always available the option of a "split" trial before a judge alone if the parties are concerned enough to show that such a course would be cheaper or quicker or both or for some other reason. The practice of conducting a "split" trial in New South Wales, in my view, does not establish that it is in the interests of justice to transfer the present proceedings to the Supreme Court there.

20. Another reason advanced to support the application was that in the Supreme Court of New South Wales there is a "specialist" defamation list presided over by a judge with skills and experience which, by implication, are submitted to be unmatched by any member of this Court. Modesty requires that to be conceded, but it is hardly necessary to add that by its resident and additional judges this Court has conducted defamation trials over many decades. There is nothing particularly difficult or complex on the face of the present case which would cause any Judge exercising the jurisdiction of this Court to be embarrassed about discharging the judicial oath to do justice to the parties according to law.

21. Then it was submitted that defamation cases can be brought on quicker in New South Wales than they can here. That is an unusual argument to raise on behalf of a defendant. But the fact is that there is nothing to support it, except perhaps press reports, of which one takes hesitant judicial notice, that a "bench marking exercise" by the Productivity Commission, has condemned this Court as the slowest in Australia. Such condemnation does not deserve a response. What I will emphasise, although there should be no need to do so to the experienced legal practitioners who act for the parties in the present case, is that anyone who wants a case heard quickly in this Court will get just that, if, and it may be a very big if, they are prepared to get it ready for hearing quickly. As it is, the Judges, the Master and the Registrar are frequently asked to adjourn matters fixed for hearing at the joint request of the parties because of the assurances by their legal representatives that it is in the interests of justice to do so.

22. One advantage of the trial by judge alone is or should be the elimination of pre-trial applications to strike out parts of a statement of claim on the ground that the matter complained of is incapable of identifying the plaintiff or incapable of giving rise to one of the several defamatory meanings or imputations which are usually pleaded in a statement of claim for defamation. Such applications are sometimes made with the intention of saving time and costs at the hearing, and, if successful, may well have that effect on occasions. On the other hand, an informed judgment about whether or not a pleaded imputation fairly arises on the matter complained of can usually be made by the trial judge when the plaintiff's counsel opens the case. If not, it should await the presentation of evidence in the plaintiff's case. In rare cases, such as possible "Polly Peck" defences so called, fairness may require that a defendant know in advance whether or not it will be necessary to prepare the evidentiary basis for such a defence, but such cases can be dealt with on their merits. What is plain is that the mystique and complexity surrounding defamation trials which has been created unnecessarily in this part of the world should be sought to be avoided in all defamation cases in this Court.

23. From the foregoing it would be evident that I see nothing in the application by which it has been shown that it is in the interests of justice to transfer the proceedings to the Supreme Court of New South Wales. What would be positively in the interests of justice would be for the parties to abide by the directions for preparation for trial set out in the document which I will now hand down to counsel and which will enable me to fix the trial for hearing on 15 July 2002 or any earlier date convenient both to the parties and to the Court.

24. It is up to the parties, who, as I have already said, are represented by experienced solicitors, to be ready for trial by 15 July or, if they are willing and able to do so and if the Court is able to accommodate them, on some earlier date.

25. Unless the parties wish to be heard, the defendant is to pay one half of the plaintiff's costs of the application for transfer, the other half to be costs in the cause, as on an ordinary directions hearing.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Counsel for the Plaintiff: Mr H Nicholas QC with Mr R G McHugh

Solicitors for the Plaintiff: Corrs Chambers Westgarth

Courts (Cross-Vesting) Act 1993

At a glance

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Judgment (28 paragraphs)

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Legislation Cited (2)

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