Keith Windschuttle v ACP Publishing Pty Limited - [2002] ACTSC 64

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)

KEITH WINDSCHUTTLE v ACP PUBLISHING PTY LIMITED [2002] ACTSC 64
(12 July 2002)

CATCHWORDS

COURTS AND JUDICIAL SYSTEM – cross-vesting legislation – defamation action commenced in Australian Capital Territory – application to transfer proceedings to Supreme Court of New South Wales – whether in interests of justice.

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5

Bourke v State Bank of NSW (1988) 85 ALR 61

Arrowcrest Group Pty Ltd v Advertiser (1993) 113 FLR 57

John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625 [2000] HCA 36

Waterhouse v ABC (1989) 86 ACTR 1

No. SC 157 of 2002

Judge: Gray J
Supreme Court of the ACT
Date: 12 July 2002

IN THE SUPREME COURT OF THE  )
  )  No. SC 157 of 2002
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN: KEITH WINDSCHUTTLE
Plaintiff

AND:ACP PUBLISHING PTY LIMITED
ACN 053 273 546

Defendant

ORDER

Judge:  Gray J
Date:  12 July 2002
Place:  Canberra

THE COURT ORDERS THAT:

The application for transfer is dismissed.

This is an application by the defendant for an order that these proceedings be transferred to the Supreme Court of New South Wales.

The proceedings were commenced by originating application filed on 25 March 2002. The statement of claim accompanying that application alleges that on 12 February 2002, the defendant published matter defamatory of the plaintiff in The Bulletin magazine, a magazine published in each of the States and Territories of Australia. The statement of claim alleges that the article in the defendant’s publication contains various imputations concerning the plaintiff’s competence, qualifications and professionalism as an historian.

The defendant has filed an appearance but has not filed any grounds of defence.

The application is made pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). That subsection provides in s 5(2)(iii) of that Act for the transfer of pending proceedings where,

“… it is otherwise in the interests of justice that the [pending] proceeding be determined by the Supreme Court of another State or Territory”.

A number of cases were cited to me by counsel in relation to the approach that I should adopt. I take the approach which commended itself to Wilcox J in Bourke v State Bank of NSW (1988) 85 ALR 61 at 78. In referring to the provision, he referred to the wide and vague terms that the term “otherwise in the interests of justice” referred to. He said,

“I take this to be a charter for the court to take the course which appears to be more than just interpreting that word widely. However, for an applicant’s choice of forum to be overridden, there must be some subjective factor which makes it possible to say that the interests of justice will be better served by a transfer than by non-transfer.”

In Dawson v Baker (1994) 123 FLR 194 Higgins J with whose reasons for judgment Gallop J expressed agreement noted that the only requirement imposed by the Cross-Vesting Act is that it “appeal” to…

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.

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Details

Case: [2002] ACTSC 64
Decision Date

CaseChat Overview and Summary

The case of Keith Windschuttle v ACP Publishing Pty Limited was heard in the Supreme Court of the Australian Capital Territory. The defendant, ACP Publishing Pty Limited, applied for the defamation proceedings to be transferred to the Supreme Court of New South Wales under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The plaintiff, Keith Windschuttle, opposed the application. The court was required to determine whether transferring the proceedings was in the interests of justice.

The court considered various factors, including the plaintiff's choice of forum, the substantive connections with the Australian Capital Territory, and the balance of convenience for the parties. The court found that the plaintiff's desire to vindicate his reputation in the Australian Capital Territory was a significant factor, as the defendant's magazine was published nationally, and the plaintiff's reputation was not solely tied to New South Wales. The court also noted that the plaintiff's links with government and national institutions in the Australian Capital Territory were relevant to the case. Furthermore, the court considered the cost implications for the defendant, with the plaintiff's solicitor arguing that defamation proceedings in the Australian Capital Territory were generally cheaper for Sydney-based clients and solicitors.

The court concluded that the interests of justice would not be better served by transferring the proceedings to the Supreme Court of New South Wales. The application for transfer was dismissed.

The court ordered that the application for transfer be dismissed.

Orders