Gray v John Fairfax Publications Pty Ltd [No 2]

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GRAY -v- JOHN FAIRFAX PUBLICATIONS PTY LTD [No 2] [2008] WASC 97

CORAM:   NEWNES J

HEARD:   2 MAY 2008

DELIVERED          :   2 MAY 2008

PUBLISHED           :  4 JUNE 2008

FILE NO/S:   CIV 2275 of 2006

BETWEEN:   BRUCE NATHANIEL GRAY

Plaintiff

AND

JOHN FAIRFAX PUBLICATIONS PTY LTD (ACN 003 357 720)
First Defendant

KATRINA JANE NICHOLAS
Second Defendant

Catchwords:

Practice and procedure - Application for action to be transferred to Supreme Court of New South Wales - Relevant considerations - Turns on own facts

Legislation:

Jurisdiction of Courts (Cross­vesting) Act 1987 (WA), s 5

Result:

Action transferred

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M L Bennett

First Defendant              :     Mr K J Martin QC

Second Defendant         :     Mr K J Martin QC

Solicitors:

Plaintiff:     Lavan Legal

First Defendant              :     Edwards Wallace

Second Defendant         :     Edwards Wallace

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

Gray v Hill [2007] WASC 123

Resource Equities Ltd v Carr [2007] WASC 246

1. NEWNES J: This is an application by the defendants for an order that the action be transferred to the Supreme Court of New South Wales, pursuant to s 5 of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (WA) (the Act). The application was heard on 2 May 2008, when I ordered that the action be transferred to that court. I said I would provide reasons for my decision. These are the reasons.

The action

1. In the action, the plaintiff pleads that he was defamed by an article written by the second defendant and published by the first defendant in The Australian Financial Review newspaper of 4 ‑ 5 November 2006.  The first defendant is the publisher of the newspaper and the second defendant is an employee of the first defendant.

2. The article is lengthy and, for present purposes, it is unnecessary to set it out.  It is sufficient to say that the article concerns the affairs of a company, Sirtex Medical Ltd (Sirtex), founded by the plaintiff and to which the plaintiff had sold certain intellectual property involving the medical treatment of liver cancer.  The plaintiff was chairman and CEO of Sirtex from 1997 until May 2005 and remained a director until January 2007. 

3. The greater part of the article concerns the plaintiff's involvement in Sirtex and, in particular, events said to have occurred in connection with of a claim (the university's claim) made by the University of Western Australia (the university) in 2004 against the plaintiff and Sirtex in which the university claimed that the intellectual property which the plaintiff had sold to Sirtex was developed while the plaintiff was a professor of medicine at the university and belonged to the university.  At the time of the relevant events alleged in the article the plaintiff was living in Sydney, to which the head office of Sirtex had been moved in 2001.

4. The plaintiff pleads that the article contained a number of imputations which were defamatory of him, principally in connection with his position as…