Bartlett v Roffey - [2023] WASC 3

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BARTLETT -v- ROFFEY [2023] WASC 3
CORAM:   SOLOMON J
HEARD:   14 & 21 DECEMBER 2022
DELIVERED          :   11 JANUARY 2023
PUBLISHED           :   11 JANUARY 2023
FILE NO/S:   CIV 1987 of 2022
BETWEEN:   GLEN BARTLETT
Plaintiff
AND
KATE ROFFEY
First Defendant
DAVID RENNICK
Second Defendant
STEVE MORRIS
Third Defendant
DAVID ROBB
Fourth Defendant

Catchwords:

Defamation - Cross vesting application - Interests of justice - Where plaintiff is domiciled in Western Australia - Where plaintiff moved to Western Australia prior to publications - Where publications concerned Melbourne Football Club - Where publications occurred in Melbourne-based media outlets - Health considerations - Defamation Act s 11(2) - Choice of Law

Legislation:

Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5(2)(b)(iii)
Defamation Act 2005 (WA), Part 2, Division 3, s 11(2)-(3)
Defamation Act 2005 (Vic), Part 2, Division 3, s 11(2)-(3)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr J MacLaurin SC & Dr M Douglas (21 December 2022)
First Defendant	:	Dr M J Collins KC and Mr S Mukerjea
Second Defendant	:	Dr M J Collins KC and Mr S Mukerjea
Third Defendant	:	Dr M J Collins KC and Mr S Mukerjea
Fourth Defendant	:	Dr M J Collins KC and Mr S Mukerjea

Solicitors:

Plaintiff	:	Bennett
First Defendant	:	Gilbert + Tobin (Melbourne)
Second Defendant	:	Gilbert + Tobin (Melbourne)
Third Defendant	:	Gilbert + Tobin (Melbourne)
Fourth Defendant	:	Gilbert + Tobin (Melbourne)

Case(s) referred to in decision(s):

Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Billiton Ltd v Schultz [2004] HCA 61
Smith v Lucht [2017] 2 Qd R 489
Szanto v Melville [2011] VSC 574

SOLOMON J:

Introduction

In David Williamson's play 'The Club', one of the masterpieces of Australian literature, Ted Parker, the fictional president of a prestigious football club said to others involved in the power struggles within the club's inner sanctum: 'I was hurt by what you said about me in the press, deeply hurt'. Part of the genius of that play is its depiction of the reality of football in Australian culture, the passion it can excite, the grievances it can generate and the emotional toll it can exact on those devoted to its management. That reality is starkly illustrated by this proceeding in which the plaintiff sues directors of an AFL football club for publications in the media and elsewhere relating to his departure from the presidency of the club.
This is an application on behalf of the defendants that the proceedings be transferred to the Supreme Court of Victoria pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) (Cross Vesting Act). Under that section, this court is required to transfer the proceedings to the Supreme Court of Victoria if it appears that it is in the interests of justice that the proceedings be determined by that court.
The plaintiff commenced proceedings in this court by writ on 16 September 2022. The summons…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bartlett v Roffey

Details

AGLC: Bartlett v Roffey [2023] WASC 3
Case: [2023] WASC 3
Decision Date: 11 JANUARY 2023

CaseChat Overview and Summary

In this matter, Bartlett sought to bring a defamation action against Roffey in the Supreme Court of Western Australia. Bartlett, who is domiciled in Western Australia, alleged that Roffey published defamatory statements about him in Melbourne-based media outlets. The publications were said to concern Bartlett's involvement with the Melbourne Football Club. Roffey applied to dismiss the case on the basis that the proper forum was Victoria due to the location of the publications and the subject matter. Bartlett opposed the application, arguing that the court should exercise jurisdiction over the case given his domicile and health considerations.

The court was required to decide whether the forum non conveniens doctrine applied and if Victoria was the more appropriate jurisdiction. The court needed to weigh Bartlett's domicile and health considerations against the location of the publications and the subject matter of the defamation. The court also needed to consider the choice of law provisions under the Defamation Act 2005 (WA) and determine if Western Australian law applied to the case.

The court found that the forum non conveniens doctrine applied and that Victoria was the more appropriate jurisdiction. The court considered Bartlett's domicile and health considerations, but ultimately found that these were outweighed by the location of the publications and the subject matter of the defamation. The court also found that Victorian law applied to the case and that Western Australian law did not apply. The court dismissed the case on the basis that Victoria was the more appropriate jurisdiction.

The court ordered that the case be dismissed and that the parties bear their own costs. The court also noted that the parties were free to bring proceedings in Victoria if they wished to do so.

Orders