The Geelong Advertiser Pty Ltd v Bertolacci

Defamation Act 2005 s 11(1) LEGISLATION CITED : s 11(2) Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5(2)(b)(iii), s 8(1)

BHP Billiton Ltd v Schulz (2004) 221 CLR 400 CASES CITED : British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230 Valceski v Valceski [2007] NSWSC 440 White v Overland [2001] FCA 1333

PARTIES : The Geelong Advertiser Pty Ltd Loris Bertolacci

COUNSEL : Mr M O'Meara (Applicant) MR P Bates (Respondent)

SOLICITORS : Mr R Leder Corrs Chambers Westgarth (Applicant) Ms C Beshay Gerard Malouf & Partners (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13863 of 2008 The Geelong Advertiser Pty Ltd v Loris Bertolacci

JUDGMENT 1 HIS HONOUR: These proceedings involve an application by The Geelong Advertiser Pty Ltd (the plaintiff) for the transfer of defamation proceedings which are pending in the District Court of New South Wales into the Common Law Division of this Court pursuant to s 8(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (Cross-Vesting Act) and then for an order pursuant to s 5(2)(b)(iii) of the Cross-Vesting Act for the transfer of the proceedings to the Supreme Court of Victoria. The application is opposed. The District Court Proceedings 2 By a statement of claim filed on 25 March 2008 Loris Bertolacci (the defendant) commenced proceedings in the District Court of New South Wales against the plaintiff seeking damages arising out of articles in paper and electronic editions of "The Geelong Advertiser" published on 23 March 2007, 31 March 2007 and 6 June 2007. 3 The defamatory imputations which the defendant claims arise from the publication of the articles are pleaded as being that the defendant: (a) was an incompetent fitness co-ordinator for Australian Rules Football training; (b) in his capacity as the Club's fitness co-ordinator, selected an inadequate fitness training regime for the Geelong Football Club AFL players' 2006 AFL pre-season and full season competitions; (c) in his capacity as the Club's fitness co-ordinator, under-worked the Geelong Football Club AFL players, who were not fit enough to compete in the 2006 AFL pre-season and full season competitions; (d) in his capacity as the Club's fitness co-ordinator, did not adequately prepare the Geelong Football Club AFL team for the 2006 AFL pre-season competition; (e) … (f) in his capacity as the Club's fitness co-ordinator, so poorly prepared the Geelong Football Club's AFL team for the 2006 AFL full season, that the team was no longer competitive after round 8 of the AFL full season competition; (g) was sacked by the Geelong Football Club in April 2007 for not preparing them properly in his role as fitness co-ordinator to compete in the 2006 AFL pre-season and full seasons; (h) was sacked by the Geelong Football Club in 2007 for not preparing them properly in his role as fitness co-ordinator to compete in the 2006 AFL pre-season and full seasons. 4 The pleading claims that the imputations were conveyed with the aid of extrinsic facts known to readers of "The Geelong Advertiser" who were interested in AFL football. The extrinsic facts are particularised as being: "(i) The 2006 AFL pre-season competition comprised a number of rounds, each approximately one week apart, in February and March 2006, followed by the pre-season play offs and pre-season final; (ii) The 2006 full AFL season competition comprised 22 rounds, each approximately one week apart, held from March to August 2006, followed by the finals series play offs, and culminated in the grand final." 5 The plaintiff has not filed a defence. The present application to transfer the proceedings was commenced by summons filed in this Court on 28 July 2008.

Section 8(1) of the Cross-Vesting Act relevantly provides: "Where -

(a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in - (i) a court, other than the Supreme Court, of the State; … and (b) it appears to the Supreme Court that - … (ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court, the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court." 6 Section 5(2) of the Cross-Vesting Act is as follows: " Where - (a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in the Supreme Court (in this subsection referred to as the "first court"); and (b) it appears to the first court that - … (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, the first court shall transfer the relevant proceeding to that other Supreme Court." 7 The critical question so far as the application for transfer of the proceeding from this Court is concerned is whether it is "in the interests of justice" that the proceeding be determined by the Supreme Court of Victoria. 8 As was explained by Brereton J in Valceski v Valceski [2007] NSWSC 440 at [69]: "The question is simply whether, assuming that the jurisdiction of the transferor court has been regularly invoked, it is in the interests of justice that the proceedings be heard and determined in the transferee court, there being a statutory obligation to transfer the proceedings to that court whenever it appears to be in the interests of justice to do so - for which purpose it is both necessary and sufficient that the transferee court be the "more appropriate" forum [ BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 421 [14], 434-5 [63]]. In identifying the "more appropriate" forum, relevant considerations include the cost and efficiency of proceedings in the respective jurisdictions, and the "connecting factors" described by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 478 - including matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction [ BHP v Schultz , 422 [18]]. Consideration of relevant connecting factors may identify a "natural forum"; cf British American Tobacco Australia Ltd v Gordon [2007] NSWSC 230, [44]. As Schultz makes clear, the interests of justice concern those of both parties, and rather than the selection of the most advantageous, or least disadvantageous, forum for one of them, the "interests of justice" are to be judged by more objective factors, such as facilitate identification of the "natural forum", in which objectively judged it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be [cf British American Tobacco v Gordon, [47]]." 9 It is not in dispute that the jurisdiction of the District Court has been regularly invoked.

Facts 10 The plaintiff's application was supported by an affidavit of Richard Alexander Leder, a solicitor, sworn on 22 August 2008 and an affidavit of Peter David Judd affirmed on 2 October 2008. The defendant relied upon an affidavit of Christine Beshay, a solicitor, sworn on 10 October 2008. None of the deponents to the affidavits was required for cross-examination. 11 The following may be discerned from the affidavit material. 12 The Geelong Advertiser is a newspaper published by the plaintiff whose principal place of business is 191 - 195 Rynie Street, Geelong, Victoria 3218 and is the oldest continually published daily newspaper in that State. The plaintiff is a subsidiary of News Ltd and its registered office is at 2 Holt Street, Surry Hills, New South Wales 2010. Six of the current directors of the plaintiff reside in New South Wales and two in Victoria. 13 The circulation figures for hardcopies of the newspaper relevantly were 23,163 (23 March 2007), 46,994 (31 March 2007) and 28,665 (6 June 2007). The vast majority of hardcopies are circulated in Victoria. Whilst there are a number of subscribers in New South Wales, the circulation in this State is insignificant. The three articles containing the allegedly defamatory material were downloaded 2077 times nationally off the internet. Just under 60 per cent of overall hits on the plaintiff's website were from Victoria. Just over 20 per cent of those hits were from New South Wales. 14 The defendant is presently a resident of Victoria, although, it seems, that he has been looking to relocate to Sydney for professional and personal reasons. The statement of claim identifies his address as being 97 Monash Street, Lalor, Victoria, 3075 which also is the address registered on the Victorian electoral roll. 15 There are two websites relevant to the defendant. They appear to list his involvement with a number of sporting clubs and businesses in Victoria, which include LABSPORTS a business dedicated to an evidence-based approach to elite sports training and development for children. LABSPORTS according to the websites offers sports development programs in Victoria and specific sports testing which is conducted at schools and sporting clubs. In the 2008 season, LABSPORTS conducted the 2008 season testing for a Victorian junior soccer club. The websites further identify a consultancy with a Victorian netball team and a role as the fitness co-ordinator for a Victorian soccer club. The defendant, however, has clients throughout Australia and regularly travels to other states for his work. 16 I conclude on the available evidence that: (i) At the time of publication of the allegedly defamatory material (the articles), the defendant was ordinarily a resident of Victoria where he principally conducted his business. That has not changed. (ii) At the time of publication of the articles, the plaintiff had its principal place of business in Victoria. That has not changed. (iii) A substantial majority of the publications of the articles occurred within Victoria. Argument 17 The plaintiff contended that the following factors demonstrated that Victoria is the "natural forum" for the defamation proceedings: (i) Location of parties : The defendant resides and The Geelong Advertiser operates within Victoria. (ii) Location of witnesses : The witnesses likely to be called predominately reside in Victoria including the defendant and the author of the articles. (iii) Subject matter of the action : The subject matter of the proceedings is quintessentially Victorian - Australian Rules Football and the Geelong Football Club. It was argued that this was of particular significance given that a jury is likely to be required to determine whether the imputations pleaded in fact arose from the articles and those imputations are alleged to depend on the possession by readers of The Geelong Advertiser of certain extrinsic facts concerning the nature and structure of the AFL competition. By reason of possession of the relevant local knowledge, Victorian jurors are likely to be in a better position than New South Wales jurors to determine whether the pleaded imputations in fact arise from the articles. (iv) Publication of the allegedly defamatory material occurred overwhelmingly in Victoria. (v) Loss of reputation : As a person who lives and conducts his business substantially in Victoria, the defendant's reputation which he sues to vindicate is primarily located in Victoria. (vi) Governing law : Applying the test and factors set out in ss 11(1) and (2) of the Defamation Act 2005, the governing law is likely to be the law of Victoria. 18 The plaintiff asked the Court under s 144(1)(a) of the Evidence Act 1995 to treat as a matter of common knowledge the fact that Australian rules football is a sport which is more popular in Victoria than in New South Wales. I do not propose to do so as this matter which is said to be one of common knowledge could not, in my opinion, rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue: s 55(1) of the Evidence Act.

19 The principal argument advanced for the defendant was that the present application was premature as the plaintiff had not filed a defence nor given adequate particulars of a foreshadowed defence. The defendant submitted that the plaintiff should be forced to put on a defence to which it is prepared by its solicitors to certify meets the standards required by ss 344-349 of the Legal Profession Act 2004. The defendant further contended that the question of whether each of the three articles was defamatory of the plaintiff was based on whether each article conveyed to an ordinary reasonable reader, with only a very rudimentary knowledge of AFL football, the various defamatory imputations pleaded. The "ordinary reasonable reader" standard was a normative standard that was common to New South Wales and Victoria and, it was argued, not a factor that tilts the "interests of justice" in favour of Victoria over New South Wales. It was pointed out that Australian rules football is a national sport and is not confined to Victoria. The defendant contended that the legal principles under the uniform defamation legislation that have been enacted in New South Wales and Victoria are essentially the same, and that the courts in this State are readily able to deal with and apply the appropriate substantive legal principles. The defendant pointed to the publication in New South Wales of the articles by hardcopy and by way of internet download. 20 The defendant referred to what was said to be an inconsistent News Limited article published in The Australian on 7 June 2006 and submitted that the relationship between the matters complained of and the article would likely involve witnesses based in Sydney and the role of the directors in coordinating inconsistent allegations in different newspapers on the subject matter of the allegations in dispute. Having considered the article and the present state of the defendant's pleading, it seems to me, that the content of the article could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue: s55(1) Evidence Act.

Conclusion 21 In the present case, the natural forum is Victoria. The defendant is a resident of Victoria who principally conducts his business in that State. Whilst Australian rules football is a game which is played throughout Australia, the matters complained of in the articles concern the defendant's competence as the fitness co-ordinator of a Victorian Australian rules football club. The plaintiff is a corporation which has its principal place of business in Victoria and a substantial majority of the publications of the alleged defamatory material occurred within that State. If there has been damage to the defendant's reputation, it has mainly occurred in Victoria. As was said by Ms Beshay (affidavit at [9]): " I am instructed that Mr Bertolacci has found it harder to attract remunerative consultancies in Victoria since the defamatory matters complained of were published." 22 Section 11(2) of the Defamation Act makes it plain, in my opinion, that the applicable substantive law is that of Victoria. The significance as a connecting factor of the substantive law governing the cause of action being Victorian, however, has been diminished since the enactment of uniform defamation legislation. 23 The connecting factors with New South Wales, on the other hand, are limited. The number of publications in this State were insubstantial and the assertion of damage is confined to a general allegation of damage to reputation. Notwithstanding the tenuous connection with this State, Ms Beshay's instructions are that the defendant's main witnesses reside in Sydney. I am nevertheless of the opinion that the Victorian Supreme Court is the appropriate forum. 24 I do not understand, however, that the decision of the High Court in BHP Billiton Ltd v Schultz confines a consideration of the interests of justice to the identification of the natural forum. In the present case the defendant complains that the application is premature as neither a defence has been filed nor adequate particulars of a foreshadowed defence provided. There is some force in this argument. Although some six months have elapsed since the commencement of the defamation proceedings and there has been ample time for the defendant's claim to be investigated, the plaintiff has not filed a defence nor has a proposed defence been detailed with any specificity. Mr Leder does not dilate at all in his affidavit upon a defence nor was a draft defence annexed to the affidavit. It appears from the plaintiff's written submissions that the plaintiff "intends to plead as a defence to the defamation action the truth of some or all of the imputations alleged to have been conveyed by the articles." Such a statement does little to enlighten the defendant or the court of the precise issues that are to be joined in the proceedings and presents difficulties for the identification of witnesses that may be required at a hearing. 25 The sole reason for the delay that was advanced by the plaintiff was that the present application to transfer the proceedings was foreshadowed and further progress of the case was postponed pending the determination of it. No explanation, however, is provided by that answer for the delay of some four months in filing the summons in this Court and the inability to provide with adequate particularity the proposed defence. 26 It is well established that the real issues in dispute are to be identified and litigated in a proper, timely and efficient manner: see, for example, White v Overland [2001] FCA 1333 per Allsop J at [4]. The plaintiff submitted that the Cross-Vesting Act does not require that a defence be filed before an application may be made under s 5(2). Whilst that is true, unexplained delay in particularising or filing a defence may lead to the conclusion that a party does not have a reasonable defence and an application to transfer the proceedings is an abuse of process. The defendant does not submit that the present application is an abuse of process but asks that it be dismissed in the interests of justice.

27 Although the issues have not been crystallised, it seems to me inevitable that the bulk of witnesses to be called at a hearing will be located in Victoria and not in New South Wales. The nature of the litigation, likely issues to be raised and the likely course of the evidence justify, in my opinion, in the interests of justice the transfer of the proceedings to the Supreme Court of Victoria. To avoid the transfer being used to further delay the defendant's claim, an order requiring that a defence be filed will be made. I emphasise that the order that I make for the transfer of the proceedings to the Supreme Court of Victoria (order 3 below) is conditional upon strict compliance by the plaintiff with the order for filing of its defence on or before 4pm 30 January 2009 (order 2 below). Accordingly, I make the following orders: 1. Pursuant to s 8(1) of the Jurisdiction of Courts ( Cross-Vesting) Act 1987 , the proceedings pending in the District Court of New South Wales being case number 1106/08 be transferred forthwith to this Court; 2. That The Geelong Advertiser Pty Ltd file its defence to the proceedings on or before 4pm 30 January 2009; 3. That upon the defence being filed in accordance with order 2, the proceedings are thereupon to be transferred to the Supreme Court of Victoria pursuant to s 5(2) of the Jurisdiction of Courts ( Cross-Vesting) Act 1987 ; 4. Costs of the proceedings in both the District Court of New South Wales and the Supreme Court of New South Wales are to abide the outcome of the proceedings in the Supreme Court of Victoria.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.