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 for the transfer of proceedings was filed by the defendants on 31 October 2022. On 7 November 2022, orders were made that:
a)the statement of claim be filed by 17 November 2022;
b)the defence be filed by 8 December 2022; and
c)the defendants' application for transfer of the proceedings be listed for hearing on 14 December 2022.
The statement of claim was not filed until 28 November 2022. As a result, the defence was not able to be filed by the time the transfer application was heard. In the circumstances and in accordance with my request, the defendants foreshadowed relevant aspects of their defence in the material filed in support of the transfer application.
The hearing occupied the afternoon of 14 December 2022 but was not able to be completed. The matter was then listed for the afternoon of 21 December 2022 and the hearing occupied that whole afternoon as well.
The defendants rely on two affidavits of their solicitor Janet Mary Vivienne Whiting; one sworn on 31 October and one on 10 December 2022. The plaintiff relies on his own affidavit and the affidavit of his partner, Victoria Laspas, both sworn on 5 December 2022. The defendants took objection to parts of the affidavits filed by and on behalf of the plaintiff. I dealt with some of those objections at the hearing on 14 December 2022. The remaining objections were refined and raised in advance of the resumed hearing of 21 December 2022. There was insufficient time to finish dealing with those objects at the hearing and they were dealt with on the papers.
A consideration of the transfer application requires some understanding of the claim itself.

Statement of claim

The statement of claim begins with the plaintiff's background. It pleads the plaintiff's birth, upbringing and education in Western Australia, and his playing career with the East Perth Football Club from 1983 to 1993 and four games with the West Coast Eagles between 1987 and 1988. The pleading goes on to refer to the plaintiff's other activities in Western Australia until 2009 including various positions in the management and administration of football, his career as a university lecturer and his career as a lawyer which involved the plaintiff's time at the law firm Clayton Utz in Perth from 2000 to 2009. The pleading reflects the plaintiff's prominence in fields relating to football, law and business, overwhelmingly connected to Western Australia from 1983 to 2009.
The statement of claim pleads that the plaintiff moved to Melbourne in 2009 and maintained his career as a lawyer with Clayton Utz where he was the Partner in Charge of the Melbourne office from 2010 to 2013. In 2015 the plaintiff established and became the principal of Bartlett Workplace Lawyers and Consultants in Melbourne. In 2016 a Perth office of that business was opened, but the plaintiff remained domiciled in Melbourne. In his professional capacity from 2015, the plaintiff undertook work principally in Victoria and Western Australia but also provided services for clients and organisations in nearly all other states and the Northern Territory. Mr Bartlett's firm and associated entities continue to maintain offices in Melbourne and Perth.
The causes of action advanced in the statement of claim concern the plaintiff's role with the Melbourne Football Club Limited (MFC). As its name indicates, it is a football club based in Melbourne. Its registered office and principal place of business is the iconic Melbourne Cricket Ground. The MFC has over 66,000 members and many more supporters. Of the members, approximately 60% reside in Victoria and approximately 2% in Western Australia. There is no evidence of the location of the broader class of supporters, but common sense suggests that they are predominantly based in Victoria.
The statement of claim pleads that the plaintiff joined the board of the MFC in July 2013 and became the president of the MFC in August 2013. It is not in dispute that the plaintiff resigned from the role of president in April 2021 in circumstances that attracted some public interest and media attention which is the background to the claims in this proceeding.
Following his resignation, the plaintiff returned to live in Western Australia with Ms Laspas in late May or very early June 2021.
The statement of claim alleges the tort of defamation in respect of three publications. All three publications concern the plaintiff's term as, and resignation from, president of the MFC. All three publications were made after the plaintiff had returned to live in Western Australia.
The first publication was by the first defendant to a journalist of the Herald Sun newspaper between 17 and 22 September 2021. The first defendant succeeded the plaintiff as the president of the MFC and she remains the president. The publication is alleged to have taken place in Perth in advance of the AFL Grand Final which was held that year in Perth on 25 September. The relevant background relates to remarks made by the plaintiff following a game between the MFC and the Port Adelaide Football Club back in 2020. The MFC lost that game. The plaintiff's post‑game comments attracted media attention at the time. In very broad terms, it is alleged that in an interview with the Herald Sun journalist in September 2021, the first defendant made statements about the plaintiff's post‑game comments in 2020 which were understood by the journalist as disparaging of the plaintiff in his role as president of the MFC. It is alleged that as a natural or intended consequence of the defamatory publication from the first defendant to the Herald Sun journalist in September 2021, statements defamatory of the plaintiff were made in an article published on 22 September 2021 in the Herald Sun 'and other syndicated news websites'.[1] The statement of claim states that further particulars of republication may be provided after discovery and the issue of subpoenas. I shall refer to this first allegation of defamation as the 'Grand Final Week Publication'.
[1] Statement of Claim, 13.
It is not in dispute that the Herald Sun is a Melbourne-based newspaper. Its registered place of business is in Melbourne and its website promotes the Herald Sun as 'Victoria's home for breaking news, footy and hard‑hitting opinion'. Notwithstanding its claim to be 'Australia's most-read newspaper', the website is decidedly focused on Melbourne and Victoria with the claim that it is 'Melbourne's biggest selling newspaper' and with a 'history of leading the agenda' for Victorians. It has an unambiguous focus on football, claiming 'a deep passion for footy'.
The second claim concerns an alleged publication by the first defendant on a Melbourne radio station, 3AW, during a program entitled '3AW is Football' on 13 June 2022. The program included discussion between various participants, including the first defendant. The plaintiff alleges statements made by the first defendant in that discussion conveyed the meaning that the plaintiff had secretly recorded a conversation of a confidential conference in February 2021 involving senior AFL figures regarding sensitive issues in relation to the MFC, and in particular its coach. The plaintiff alleges that statements made by the first defendant also conveyed the meaning and that the plaintiff had leaked the secret recording to the media and acted disloyally to the MFC and its coach. The publication is alleged to have been broadcast 'upon radio, but also upon the World Wide Web and in digital, telephonic and electronic form and by other forms'. No further detail is provided but the plaintiff pleads that further particulars may be provided following discovery and subpoenas. I shall refer to this as the '3AW Publication'.
The evidence before me established that the company operating 3AW is Radio 3AW Melbourne Pty Limited. Its principal place of business is in Melbourne. The defendants also produced survey documents indicating, unsurprisingly, that overwhelmingly (if not entirely) the audience of 3AW is based in Melbourne or at least Victoria.
The third claim relates to an official statement of the MFC published by all three defendants as directors of the MFC. The statement was initially published on the MFC website on 17 June 2022 with a link provided on MFC's Twitter account. The plaintiff alleges that it was the natural or intended consequence of the statement that it would be republished widely by various means. The statement of claim states that further particulars of publication may be provided following discovery and subpoenas. The plaintiff alleges that the statement defamed him in relation to his conduct as president of the MFC and in relation to a statement the plaintiff had made about his resignation from that position. I shall refer to this as the 'MFC Board Statement'.
In relation to the 3AW Publication and the MFC Board Statement the plaintiff also relies upon republication, but on the issue of damages only. The republication is alleged to have occurred widely and by various means, including, in respect of the MFC Board Statement, in Western Australia on the WA Today website and the Perth Now website.
The statement of claim then pleads at some length, circumstances of aggravation in respect of each of the allegedly defamatory publications. The tenor of the plea is in effect that the publications were, to differing degrees, gratuitous, malicious, and knowingly disingenuous and self‑serving.

Defence

As noted above, the defendants foreshadowed aspects of the defence that are relevant to the application to transfer. These were summarised in the affidavit material of the defendants' solicitor.
First, the defendants contend that the applicable law is that of the State of Victoria, not Western Australia. That is a significant issue that I shall return to later in these reasons.
Secondly, it is accepted that the Grand Final Week Publication relates to words spoken and thereby published by the first defendant while she was in Perth. However, the matters related to conduct which took place when the plaintiff resided in Victoria, occurred largely in Victoria, involved people who were Victorian and is recorded in documents held by people or entities based in Victoria.
Thirdly, in respect of the 3AW Publication, the defendants emphasise that the first defendant was in Victoria when she spoke the relevant words, and the discussion pertained to conduct and events which occurred in February 2021 in Victoria when the plaintiff was living in Victoria and concerned the conduct of others who were largely Victorian. Again, the conduct is largely recorded in documents held by people or entities based in Victoria.
Fourthly, it is accepted that the MFC Board Statement was published after the plaintiff had returned to live in Western Australia. However, the defendants point to the fact that all defendants were resident in Victoria at the time of the publication and it concerned conduct that occurred in Victoria at a time that all the people the subject of the statement, including the plaintiff, were living in Victoria.
Finally, it was said on behalf of the defendants that the circumstances of aggravation will be denied and that they concern matters that largely occurred in Victoria and involved people living in Victoria at the relevant time.

Overview of the parties' positions

In broad terms, the defendants rely on the following factors in their contention that the interests of justice require the transfer of the proceedings to the Supreme Court of Victoria:
a)most of the parties reside in Victoria;
b)the matters complained of were overwhelmingly published in Victoria;
c)the subject matter of the proceeding concerns events that occurred in Victoria;
d)the case concerns alleged damage to the plaintiff's reputation arising out of his conduct in Victoria;
e)most of the witnesses at the trial will be based in Victoria; and
f)the applicable substantive law is the defamation law of Victoria, which is materially different from the defamation law of Western Australia in ways that have a significant bearing on this matter.[2]
[2] Defendant's Submissions (11 December 2022), [1.3].
In oral submissions, senior counsel for the defendants emphasised the natural connection of the causes of action with Victoria; the events the subject of the publications, the audiences of the publications, the dramatis personae – all of these were largely if not overwhelmingly Victorian.
Again, in broad terms, the plaintiff relies on the following factors in resisting the application:
a)the causes of action 'arise in Western Australia';
b)either the applicable law is that of Western Australia or there is no material difference between the relevant law of Western Australia and Victoria;
c)the nature and medium of publication were not 'Victoria‑centric';
d)the plaintiff has always had a connection to Western Australia;
e)the transfer of the proceedings will be difficult for the plaintiff and his partner and especially injurious to their health; and
f)the evidence advanced by the defendants is not sufficient to justify the transfer.
In oral submissions, senior counsel for the plaintiff addressed the defendants' emphasis on the Victorian‑centric nature of the events and personalities the subject of the allegedly defamatory statements. Senior Counsel pointed to the plaintiff's standing and reputation in Western Australia and the consequential impact on his reputational future in Western Australia where he now resides and intends to remain, and importantly, where he was at the time of the publications. The plaintiff also pointed to other proceedings in this court. Those proceedings are against other entities (in that case, corporations) alleging defamation arising out of the same background circumstances rendering it undesirable for the two actions to be tried in different courts. It was also submitted on behalf of the plaintiff that there had been insufficient conferral in respect of the transfer application and that the absence of a defence meant that the defendants' contentions regarding potential witnesses and the costs of proceedings did not rise above the level of speculation.

Applicable principles

The sole criterion stipulated by the statutory provision is 'the interests of justice'. That is, this court must transfer the proceeding if it considers that it is in the interests of justice that the matter be determined by the Supreme Court of Victoria. By its very nature, the notion of the interests of justice does not lend itself to an exhaustive list of prescriptive criteria. A 'wide range of factors'[3] have been considered by the courts and given different weight in different contexts, all in the evaluation of the interests of justice.
[3] BHP Billiton Ltd v Schultz [2004] HCA 61 [20].
In BHP v Schultz,[4] Gleeson CJ cited with approval the observation of Street CJ in Bankinvest AG v Seabrook that the statutory provision calls for a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.[5]
[4] BHP Billiton Ltd v Schultz [2004] HCA 61 [13].
[5] Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 713 ‑ 714.
Gleeson CJ went on to explain that:
If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court 'shall transfer' the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.[6]
[6] BHP Billiton Ltd v Schultz [2004] HCA 61 [14].
As to the relevant factors, Gleeson CJ continued:
Reference is sometimes made to one forum or another being the 'natural forum'. Such a description is usually based upon a consideration of connecting factors … as 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 …
In many cases, there will be such a preponderance of connecting factors with one forum that it can readily be identified as the most appropriate, or natural, forum. In other cases, there might be significant connecting factors with each of two different forums. Some of the factors might cancel each other out. If the action is between two individuals, and the plaintiff resides in one law area and the defendant in another, there may be no reason to treat the residence of either party as determinative, although, as already noted, it will ordinarily be the residence of the defendant that is important to establish jurisdiction. Weighing considerations of cost, expense, and convenience, even when they conflict, is a familiar aspect of the kind of case management involved in many cross-vesting applications.[7]
[7] BHP Billiton Ltd v Schultz [2004] HCA 61 [18] ‑ [19].

BHP v Schultz is also authority for the proposition that no significance is to be attached to the plaintiff's choice beyond considerations of the interests of justice, and a plaintiff's good faith in preferring the forum in which the action was commenced is not relevant.[8]
[8] BHP Billiton Ltd v Schultz [2004] HCA 61 [26].

Consideration

In the assessment of the interests of justice, the cases speak of a preponderance of connecting factors with a location. In my assessment, the preponderance of connecting factors in this matter readily identifies Victoria as the natural forum. I have come to that conclusion for a number of reasons.
First, the events the subject of the publications overwhelmingly if not entirely concern the MFC, self‑evidently an organisation based in Melbourne, with its headquarters or 'home' in Melbourne and which attracts support around Australia and probably outside Australia, but primarily in Victoria.
Secondly, the publications largely concerned events that happened in Melbourne at a time that almost all the relevant characters, including the plaintiff himself, were domiciled in Melbourne. Other than the plaintiff, the relevant characters overwhelmingly continue to live in Melbourne.
Thirdly, I think it likely that most of the witnesses will be people domiciled in Melbourne. There was some debate about the number and identity of witnesses that are likely to give evidence at trial. Senior counsel for the defendants submitted that a good number of witnesses, including the defendants, the journalist from the Herald Sun involved in the Grand Final Week Publication, and others, will all be required to give evidence. Senior counsel for the plaintiff submitted that the defendants' analysis was premature and somewhat speculative and quite possibly overstated in the absence of a defence. The only safe assumption that could be made was that the plaintiff and his partner, Ms Laspas, would give evidence and they are both resident in Western Australia. I do not accept that the defendants' analysis of likely witnesses was as loose or as speculative as the plaintiff's counsel suggested. On the contrary, it appeared to me to be the product of a reasoned analysis of the statement of claim and the foreshadowed defence. The absence of a defence and the qualifications attached to the evidence as to the likely content of the defence, did not in my view detract materially from the careful submission about likely witnesses advanced on behalf of the defendants. For that reason, it seems to me to be more likely than not that a significant majority of witnesses will be based in Melbourne. I should add however that I do not regard this as a particularly weighty factor. If the other elements established a closer connection with Western Australia, then the preponderance of witnesses being based in Melbourne would be unlikely in my view to tip the balance in favour of Victoria. But for the reasons I provide, I do not consider this to be the case.
Fourthly, the publications of which the plaintiff complains largely happened in, or at least emanated from Melbourne. Victoria was the principal location of the audience for the publications that are said to have harmed the plaintiff. Although the Grand Final Week Publication as pleaded took place in Perth in that the interview was conducted while the first defendant and the journalist were in Perth, its real 'sting' (to adopt a descriptor used by the plaintiff's counsel) was in its allegedly intended or probable consequence – an article published in the Herald Sun and other (unspecified) publications. As I have noted, the Herald Sun is a Melbourne‑based and Melbourne‑focussed newspaper. It may also be observed that the interview only occurred in Perth because, due to wholly exceptional circumstances, the AFL Grand Final in 2021 was held in Perth. In respect of the 3AW Publication, I have already noted that 3AW is a Melbourne radio station. It may be that these publications were able to be, or were, accessed outside of Victoria or that by various means the relevant statements were republished outside Victoria. But adopting a common‑sense perspective, there can be no doubt that these publications were predominantly in Victoria. The MFC Statement was placed on a website on the world‑wide‑web. But as it was solely concerned with the MFC and its management, to the extent that it was connected to a place, that place was plainly Melbourne. Given the location of the significant majority of the MFC's members and supporters, common sense suggests that the significant majority of people who access the MFC website, are Victorian.
Fifthly, is the issue of the applicable law to which I now turn, that is, whether the action is governed by the law of Western Australia, contained in the Defamation Act 2005 (WA) or the law of Victoria, contained in the Defamation Act 2005 (Vic). This issue requires some fairly detailed consideration. It was a significant focus of the parties' submissions. In addition, some of the considerations in relation to this issue overlap with elements of the broader issue of the interests of justice as both issues direct attention to the notion of 'connection' with a place, as will be explained.
In my view, the issue of the applicable law is a matter that I do not consider I am in a position to determine at this point. However, for the reasons explained below, my provisional view is that Victorian law is likely to apply. Although the Western Australian and the Victorian statutes are not the same, the provision which governs the choice of law is identical and is found in Pt 2, Div 3, s 11(2) and s 11(3) of both statutes. Those subsections provide:
(2)If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication.
(3)In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account —
(a)the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time;
(b)the extent of publication in each relevant Australian jurisdictional area;
(c)the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area; and
(d)any other matter that the court considers relevant.
As the words of the statute make plain, the determinant of the choice of law is the place where the harm occasioned by the publication has its 'closest connection'. It is evident that the test for the choice of law under s 11(2) of the Defamation Act and the test for whether the proceedings must be transferred under s 5(2)(b)(iii) of the Cross Vesting Act (as explained in BHP v Schultz) both deploy the notion of 'connection' with a location.
The way in which the notion of 'connection' is applied in the Defamation Act and the Cross Vesting Act has some common factors, but also some differences. Under the Defamation Act the issue of connection is determinative of the applicable law, whereas under the Cross Vesting Act, 'connection' is a significant factor in assessing the interests of justice, but the interests of justice may require a forum that is not the location with the closest natural connection. In addition, the notion of connection under s 11(2) of the Defamation Act is directed solely to the location with which the harm has its closest connection, whereas the connecting factors discussed in BHP v Schultz and many other authorities, invite a broader assessment of connection.
I should observe at this point that the 'harm' in s 11 of the Defamation Act has been held to be limited to reputational harm and does not extend to harm to feelings.[9] Senior Counsel for the plaintiff invited me not to follow those decisions and to adopt a broader meaning of harm so as to include harm to feelings. I am not persuaded that those decisions are obviously incorrect and I shall therefore proceed on the basis that for the purposes of s 11 of the Defamation Act, harm is limited to harm to reputation.
[9] Smith v Lucht [2017] 2 Qd R 489 [63]; Szanto v Melville [2011] VSC 574 [162].
It follows that the location with which the reputational harm to the plaintiff occasioned by the publication as a whole has its closest connection, is determinative of the choice of law. It is also relevant to (but not determinative of) the defendants' application to transfer the proceedings. That is because independently of the choice of law, the location of the plaintiff's reputational harm is (together with other factors including the location of harm in a broader sense) a relevant factor in weighing the interests of justice in the consideration of the defendants' application.
Subsection 11(3) of the Defamation Act sets out factors that a court 'may' take into account in the assessment of the location of the reputational harm. It is noteworthy that the first factor set out in s 11(3) is the place where the plaintiff was ordinarily resident at the time of the publication. It is not in dispute that in respect of each of the publications, that place was Western Australia. That is therefore a factor that militates in favour of the application of Western Australian law. However, it seems to me as a matter of common sense that this factor was specified in the statute because ordinarily, a person's domicile is where they will be most injured and impacted by the impugning of the person's reputation. Here, however, that factor is not as potent. As I have explained, the relevant events concerned a Melbourne sporting club, the events largely happened in Victoria and the publications were largely broadcast to a Victorian audience. Shortly after the events but prior to the publications, the plaintiff left Victoria where he had been for 11 years, and returned to Western Australia. The plaintiff continued to enjoy a reputation and maintain a business office in Melbourne. He left Melbourne for reasons which included not wishing to remain in the stressful environment created by the events the subject of the publications. In those circumstances, the plaintiff's residence in Western Australia is less significant than might ordinarily be the case in determining the location where the harm has its closest connection. I also observe that the plaintiff's departure from Victoria in order to ameliorate the emotional distress created by the events rather serves to illustrate the connection of those events to the place which the plaintiff was seeking to avoid, that is, Victoria.
Senior counsel for the plaintiff contended that even if the harm in s 11 of the Defamation Act is limited to reputational harm, the harm was principally suffered in Western Australia, because that is where the plaintiff principally developed his professional reputation and where he has now chosen to remain and use as his base for his ongoing business and professional activities. It is Western Australia where the real sting of the defamation bites according to the plaintiff's counsel.
At this stage, I am unable to reach a definitive conclusion as to the jurisdictional area where the reputational harm has its closest connection. However, my provisional view is that given the Melbourne‑centric nature of the events, the publications and their audiences, the national reach of the plaintiff's business reputation and the location of the plaintiff's business offices in both Melbourne and Perth, the likely area with the closest connection with the reputational harm, is Victoria. In that context, senior counsel for the defendants accepted that the position might well be different if the plaintiff expressly disavowed any claim for harm to his reputation outside Western Australia and thereby limited the claim to the harm suffered in Western Australia. After some exchange, senior counsel for the plaintiff expressly disavowed any intention to amend and thereby limit the plaintiff's claim in that way. The plaintiff's evidence was that at functions he has attended in Perth since his return to Western Australia, there has been keen interest in the events of his resignation from the MFC and reference to the allegedly defamatory publications. I accept that may well be the case but, adopting the statutory wording, such individual instances in my respectful view are unlikely to shift the location of the reputational harm 'as a whole'.[10]
[10] Defamation Act 2005 (WA) s 11(2).
The application of Victorian law has potentially material consequences in light of differences between the Defamation Act in Western Australia and Victoria. The differences were helpfully set out by the defendants' lawyers in an aide memoire. The most significant of these for present purposes is s 12B of the Defamation Act (Vic). That section provides that a person 'cannot commence a defamation proceeding' unless the person has first given the proposed defendant a 'concerns notice'. There is no equivalent provision under the Defamation Act (WA) and no such notice was issued by the plaintiff to the defendants. There emerged a controversy between the parties about whether, if Victorian law applied, the requirements of s 12B are substantive or merely procedural, and the consequences of either outcome, including whether the absence of a notice would render the proceedings incompetent. The determination of those issues might require the proceedings to be re‑commenced, which would raise a statutory limitation issue in respect of the MFC Board Statement. That in turn would require consideration of the provisions under the Victorian statute regarding the extension of time, which are different from and indeed more liberal than the comparatively stricter provision for extending time in Western Australia. At least some of these issues regarding the proper construction and application of the Victorian statute are yet to be resolved by judicial determination because the introduction of s 12B is relatively recent.
My provisional view that the applicable law is likely to be that of Victoria militates in favour of the matter being transferred to the Supreme Court of Victoria particularly in this case because in my view, it would be preferable for these fairly novel complexities to be resolved by the superior court in that jurisdiction.
The issues arising from the potential (and in my view, likely) application of s 12B of the Victorian statute are all the more acute because senior counsel for the defendants foreshadowed that, in any event, the next step to be taken by the defendants in these proceedings will be an application premised upon the asserted application of s 12B of the Victorian statute to the proceeding. The defendants therefore contended that the application of the Victorian statute and its consequences will need to be confronted in any event and sooner rather than later.
It follows in my view that the likely application of Victorian law, and the reasons for that conclusion discussed above, weigh in favour of the defendants' application to transfer the proceedings to the Supreme Court of Victoria.
I turn to a number of points advanced on behalf of the plaintiff.
The plaintiff emphasised his background, connection and reputation in Western Australia as establishing the most natural connection of the proceedings with Western Australia. While an important element of the plaintiff's reputation is undoubtedly enjoyed in Western Australia, for the reasons I have explained above, I do not consider that in these circumstances that aspect of his reputation prevails over the otherwise natural Melbourne focus and flavour of the subject of the proceedings.
The plaintiff also pointed to the fact that he has engaged Perth‑based solicitors and counsel. I accept that this is likely to create some additional cost and inconvenience. However, the plaintiff did not contend that this presented any real barrier to the prosecution of the proceedings and in the circumstances I do not consider it is a matter of particular weight. In this era of electronic communications such matters are not as significant as they once might have been.
Senior counsel for the plaintiff also pointed to the fact that it could not be suggested that by issuing the proceedings in this court, the plaintiff was 'forum shopping'. I should first observe that no such suggestion was advanced by the defendants. Nevertheless, senior counsel for the plaintiff submitted this was a significant factor because overcoming the mischief of forum shopping was the object, or at least an object, of s 5 of the Cross Vesting Act. It may be accepted that providing a mechanism to overcome the problems of forum shopping was an object in the enactment of the transfer powers in s 5.[11] But the absence of such a motive on the part of the plaintiff is in reality, inconsequential. The good faith of the plaintiff is not in issue. Where the interests of justice lie is the only question,[12] or the only lodestar by which the judge may steer.[13]
[11] Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 725 and the Explanatory Memorandum to the New South Wales Bill set out therein.
[12] BHP Billiton Ltd v Schultz [2004] HCA 61 [26].
[13] Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 727.
For the reasons I have explained, I have concluded that the preponderance of factors point to Victoria as the natural forum for these proceedings. However, that is not the end of the assessment of where the interests of justice lie. That is because there is a further factor on which the plaintiff relies in resisting the application. That is the impact on the health of the plaintiff and his partner, Ms Laspas, if the proceedings are transferred to Melbourne. In the interests of preserving, to the extent possible, the privacy of the plaintiff and Ms Laspas, I will not set out the detail of those health concerns. It is sufficient to record that each of the plaintiff and Ms Laspas has given direct affidavit evidence of their health condition, the impact on their health of the events that have led to these proceedings and their concern that the transfer of the proceedings to Victoria would exacerbate their health condition. In addition, each of Mr Bartlett and Ms Laspas have produced a letter from the same health professional explaining the impact of the events on aspects of their health. The letter in respect of Ms Laspas is dated 22 March 2022 and the letter in respect of Mr Bartlett is dated 26 November 2022. I note that the treating health professional is based in Melbourne.
It is notorious (or ought to be) that the emotional and physical toll that litigation exacts on its participants is often significant. This is probably all the more so in many defamation matters which invariably concern aspects of a person's sense of worth and identity and often seek compensation for hurt feelings. It is plain from the affidavit material filed that the events leading to these proceedings have engendered deep feelings bringing health consequences which may well be exacerbated by the proceedings themselves. If the refusal of the defendants' application were to extinguish these ill‑effects, it might well be that the interests of justice would require the proceedings to remain in this court. Regrettably, however, it is far more likely that stress and its attendant health consequences will accompany the litigation wherever it may be. The personalities, the media attention and the noxious air of tattle will likely hover about the proceedings and follow their path. I accept that for the plaintiff and Ms Laspas, those stresses might be more acute in Melbourne. But that is a matter of degree. On the evidence before me I am not able to be satisfied that the additional degree of distress of being in Melbourne for the trial outweighs the many factors that point to Melbourne as the natural forum for these proceedings. In addition, the defendants have advised the court that they would not oppose an application for Ms Laspas to give evidence remotely. The plaintiff appeared to reject the significance of any such concession because it would deprive Ms Laspas of the opportunity to give her evidence in person which may allow it to carry more weight. These may well be difficult choices that the plaintiff and Ms Laspas will have to make if and when the time comes. However in the overall assessment of the interests of justice I do not consider that this undoubted difficulty should trump the other factors that I have set out.

Senior counsel for the plaintiff also pointed to other proceedings pending in this court in which the plaintiff is suing other corporate parties for defamation arising out of broadly the same background circumstances. In my view, if the interests of justice require these proceedings to be transferred, then it would be a high burden to surmount in order to shift that assessment by reason of different proceedings to which these defendants are not a party. While it is generally desirable to avoid a multiplicity of proceedings in different forums dealing with the same factual matrix, in my view that desirability is not, at least in this case, of sufficient force to alter the conclusion about where the overall interests of justice lie.
In all the circumstances, I consider that the defendants' application should succeed and the proceedings should therefore be transferred to the Supreme Court of Victoria.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IS
Associate to the Honourable Justice Solomon
11 JANUARY 2023