Gray v John Fairfax Publications Pty Ltd [No 2]
[2008] WASC 97
•2 MAY 2008
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 DefendantKATRINA 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
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
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.
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.
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.
The plaintiff pleads that the article contained a number of imputations which were defamatory of him, principally in connection with his position as a director of Sirtex.
The defendants' submissions
It was submitted on behalf of the defendants that the Supreme Court of New South Wales was plainly the appropriate forum for the action. The defendants relied upon a number of factors which they said pointed to that:
•the plaintiff and the second defendant, as natural persons, reside in New South Wales;
•the first defendant is registered as a company in New South Wales;
•the article was first written, printed and then distributed in New South Wales;
•the circulation of the newspaper is approximately four times greater in New South Wales than in Western Australia;
•the majority of the defendants' potential witnesses are resident in New South Wales, being many of the same witnesses who are relevant to another action brought by this plaintiff, Gray v Hill & Ors (Hill action), which was previously ordered to be transferred to New South Wales;
•there is a substantial inter‑relationship between this action and the Hill action, which is a defamation and misleading or deceptive conduct claim brought by this plaintiff against other directors of Sirtex arising out of events alleged to have occurred in connection with the university's claim and involving the same sub-stratum of fact;
•in view of that overlap, the interests of justice lie in the two actions being heard in the same forum, namely New South Wales;
•the plaintiff's business reputation is inextricably linked to the fortunes of Sirtex, a public company listed on the Australian Stock Exchange and having its principal office in Sydney, as opposed to any business ventures the plaintiff might maintain in Western Australia;
•it is not apparent that the plaintiff's personal reputation is greater in Western Australia than in New South Wales;
•the nexus of the matters in issue is more closely linked to New South Wales than Western Australia.
It was submitted that there had been no relevant delay by the defendants in bringing the present application. The defendants' solicitors first raised the matter by letter of 17 August 2007. There was no substantive response from the plaintiff to that letter until 18 February 2008. The application was brought on 20 February 2008.
The plaintiff's submissions
It was submitted on behalf of the plaintiff that it was in the interests of justice that the action be heard in this court, which was the natural forum for the action. The need for the efficient and economical resolution of disputes is a significant factor in determining whether or not it is in the interests of justice to transfer proceedings. In the present case, the position was:
•the plaintiff is a resident of both Perth and New South Wales and shares his time between the two;
•the plaintiff is the CEO of, and actively operates, a business known as 'Gray Surgical' in Western Australia and does not have any current business interests in New South Wales; on the other hand, the first defendant is a national corporation with business interests throughout Australia;
•it is irrelevant that the article was first written and printed in, and then distributed from, New South Wales. The Australian Financial Review is a national publication distributed and read throughout Australia. It is also irrelevant that the circulation of the newspaper is approximately four times greater in New South Wales;
•as the defendants' solicitors have not indicated which witnesses they intend to call at trial, it is not apparent that the majority of witnesses are resident in New South Wales or that they will be the same witnesses as in the Hill action. In any event, witnesses for both parties will be inconvenienced to some extent and the availability of taking evidence by video means that the location of witnesses has less practical significance;
•this action and the Hill action are quite distinct. The defamation claim in the Hill action is only a minor part of the overall claim and is run in conjunction with a major cause of action for misleading or deceptive conduct. Moreover, the defamatory publication complained of in the Hill action involves statements allegedly made by the directors of Sirtex in relation to the affairs of Sirtex, a company registered and operating in New South Wales. In that case, two of the four publications complained of were made to shareholders of Sirtex, 40% of whom are based in New South Wales compared to 6% in Western Australia, and two of the four defendants and a person who is relevant to the action (although not a party) were resident in New South Wales. In this action, on the other hand, the defamatory conduct complained of is a publication in a national newspaper;
•it is established on the affidavit evidence in this action that the plaintiff's reputation is most significant in Western Australia. He has spent most of his life in Western Australia, where he has an established and continuing academic and scientific reputation and where he currently takes an active part in managing the business of Gray Surgical. He has no academic or professional business interests outside Western Australia and currently spends the majority of his time in Western Australia or in activities related to Gray Surgical. Since December 2004, he has spent the majority of his time in Perth attending to matters associated with the highly publicised and lengthy Federal Court proceedings concerning the university's claim. His reputation in Western Australia is substantial; he is more widely known in Western Australia than elsewhere;
•the plaintiff has retained solicitors and counsel in Western Australia in relation to other substantial proceedings. While the plaintiff could engage solicitors and counsel in New South Wales, equally the defendants could engage counsel and solicitors in Perth.
It was also submitted on behalf of the plaintiff that there had been significant delay by the defendants in bringing the application. When the question of transfer was first raised on 17 August 2007, the plaintiff had already filed a statement of claim, the defendants had requested further and better particulars of it, the defendants had brought a strike out application which had been heard and determined, and the plaintiff had filed an amended statement of claim. Substantial costs have already been incurred by the plaintiff in the action and he will suffer considerable prejudice if he is required to instruct new solicitors.
Should the action be cross-vested?
In my decision on the cross-vesting application in the Hill action (Gray v Hill [2007] WASC 123) I set out what I consider to be the relevant principles applicable to an application of this nature. I will not repeat all I said there. Suffice it to say, it is well established that an application of this nature involves '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'. As I observed in the Hill action, the determination of an application of this nature is more a matter of art than science, and it is not susceptible of an exhaustive and finally calculated assessment and weighing of the pros and cons of each of the jurisdictions contended for. Often in the end what is involved is little more than an impression after considering, in a pragmatic way, the factors bearing upon which jurisdiction is more appropriate, having regard to the interests of justice generally.
In this case, there are some factors which I do not think have great weight one way or the other. I consider the fact that the first defendant is registered in New South Wales and that the article was first written and printed in, and distributed from, New South Wales is of very little significance. The newspaper is a national publication and the place where the article was written and printed is of little relevance to the practical questions involved in assessing in which court it is more appropriate that the action be heard. The fact that The Australian Financial Review has a significantly greater circulation in New South Wales than in Western Australia is not a matter of great weight.
Nor do I think that a great deal of weight is to be attached to the plaintiff's complaint that he will lose the benefit of his solicitors and counsel in Perth. As Martin CJ observed in Resource Equities Ltd v Carr [2007] WASC 246 [34], in this day and age generally this is not an issue which particularly favours one course over another, as all legal practitioners in Australia are entitled to appear in any other jurisdiction within the country pursuant to the national mutual recognition legislation.
Given the present national structure of the Australian legal profession, the plaintiff would be entitled to be represented in New South Wales by his current legal representatives if he wished. In any event, whatever arrangements may ultimately be made it by no means necessarily follows that if the action is transferred to New South Wales the plaintiff will lose the service of his current legal representatives, or their accumulated knowledge and the benefit of the work they have done to date on his behalf.
Of much greater significance, in my view, is the fact that the subject of the article about which the plaintiff complains relates to his alleged activities and involvement in the affairs of Sirtex. The principal office of Sirtex was then (and I understand still is) located in Sydney and, at the time of the alleged events described in the article, the plaintiff's substantial business activities were in connection with the affairs of Sirtex. Indeed, it appears that the plaintiff relocated to Sydney in March 2001 at about the time he caused the registered office of Sirtex to be moved to Sydney, and he was resident in Sydney during the time of the relevant events. The events alleged in the article upon which the imputations are based are said to have taken place in Sydney and it appears that the majority of those involved in those events are resident either in Sydney or overseas. So far as can be judged at this early stage of the action, it seems likely that the majority of those who will be called to give evidence will be Sydney residents.
The plaintiff's evidence as to his own current place of residence was rather enigmatic. In an affidavit in opposition to this application he said:
I officially reside in New South Wales following the relocation of business described in paragraph 18 [which refers to his activities in Gray Surgical]. Apart from my spouse and children, virtually all of my extended family is based in Western Australia. I have a residence in Perth for which I and my family are the sole occupants. My time is shared between Western Australia and New South Wales.
I take it from that that the plaintiff will not suffer any significant personal inconvenience if the action were to be transferred to New South Wales.
It is the case that this action raises different issues to the issues in the Hill action, but there is plainly a significant connection between the two. Not the least of those connections is that in the Hill action the plaintiff specifically pleads the publication of the article which is the subject of this action in support of a claim for aggravated damages. It is also evident that both actions relate to many of the same or to inter-related events connected with the university's claim against the plaintiff and Sirtex in respect of the intellectual property. I should note in passing that the university's claim has very recently been dismissed by the Federal Court.
There is plainly a substantial common substratum of fact underlying both this action and the plaintiff's claim in the Hill action. I also accept that the plaintiff's business reputation remains to a substantial extent linked to Sirtex.
There has been some delay by the defendants in bringing this application. Whilst I accept that the interlocutory proceedings to date have been concerned with the form of the plaintiff's statement of claim and with particulars of it, I do not think that is an adequate explanation for the delay. Nevertheless, delay is only one factor. I do not think that in this case it substantially affects the balance which, in my view, is weighted heavily in favour of transferring the action to the Supreme Court of New South Wales.
Conclusion
On balance, I consider that the Supreme Court of New South Wales is a more appropriate forum and it was on that basis that, on 2 May 2008, I ordered that the proceedings be transferred to that court.
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