JUDITH PUGH v SALLY MORRISON & ANOR

[2011] ACTSC 44 (18 March 2011)

 

 

COURTS AND JUDICIAL SYSTEM – jurisdiction – cross-vesting legislation – action for damages for defamation -  application to transfer proceedings to Supreme Court of Victoria –which jurisdiction has closest connection to action– closest connection issue to be determined at trial – court satisfied transfer would be in the interests of justice – transfer ordered

 

 

 

 

Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT), s 5(2)(b)(iii)

Civil Law (Wrongs) Act 2002 (ACT), s 123, Chapter 9

Supreme Court Act 1933 (ACT), s 22

 

Defamation Act 2005 (Victoria)

 

 

O’Connor v Nationwide News Pty Ltd [1995] ACTSC 112

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Ra v Nationwide News Pty Ltd [2009] FCA 1308

BHP Billiton Ltd v Schultz [2004] 221 CLR 400

 

 

 

 

 

 

 

No.  SC 889 of 2009

 

Judge:              Master Harper

Supreme Court of the ACT

Date:               18 March 2011


IN THE SUPREME COURT OF THE     )

                                                                        )           No.  SC 889 of 2009

AUSTRALIAN CAPITAL TERRITORY            )

 

BETWEEN:                            JUDITH PUGH

 

                                                Plaintiff

 

AND:                                      SALLY MORRISON

 

                                                First Defendant

 

                          HARDIE GRANT BOOKS PTY LTD

                          ACN 080 486 746

 

                          Second Defendant

 

 

ORDER

 

Judge:                                                              Master Harper

Date:                                                               18 March 2011

Place:                                                               Canberra

 

 

THE COURT ORDERS THAT:

 

the action be transferred to the Supreme Court of Victoria.


1.                  This is an application for transfer to the Supreme Court of Victoria pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) (the Cross-Vesting Act).  The plaintiff claims damages for defamation in a book written by the first defendant and published by the second defendant.  The book, After Fire, is a biography of the late Clifton Pugh, the distinguished painter.

2.                  The plaintiff asserts in the statement of claim that she is an author and art dealer and was Mr Pugh’s partner between 1970 and 1980.  They married in 1976 and divorced in 1981.  The plaintiff’s address set out in the statement of claim is in Brunswick, a suburb of Melbourne.  The address of both defendants is in Prahran, another Melbourne suburb.  The plaintiff asserts that the book was published in August 2009 in each State and Territory of Australia.  She annexes to her statement of claim four extracts from the book.  She pleads a number of imputations said to arise from the natural and ordinary meaning of each extract.  She claims aggravated as well as conventional damages, and sets out particulars of matters on which she relies in that regard.

3.                  Both defendants initially filed conditional notices of intention to respond but now concede jurisdiction and have filed unconditional notices.  Initially they sought an order that the action be dismissed for want of jurisdiction, but that part of the application is no longer pursued. 

4.                  Information from the publisher is that at 12 November 2009, the numbers of copies of the book sold in each State and Territory were:

Victoria

356

New South Wales

285

Queensland

99

Western Australia

50

South Australia

39

Australian Capital Territory

34

Tasmania

24

Total

887

5.                  This table was annexed to an affidavit by the defendant’s Melbourne solicitor in December 2009.  In a supplementary affidavit in March 2010, the same solicitor set out a table of somewhat different figures which he deposed he had been given by the publisher up to 5 March 2010.  On analysis, the March 2010 figures are the same for this Territory but fewer for each of the states, with a smaller total.  In the absence of any explanation for the discrepancy I assume that the first table was correct.

6.                  A solicitor with the Melbourne firm acting for the defendants was informed by an official at the Supreme Court of Victoria in March 2010 that a defamation action involving a jury trial with an estimate of two to three weeks could be heard six to eight months from proceedings being issued.  It is not clear whether this forecast takes account of interlocutory steps, such as an application to strike out pleaded imputations foreshadowed by the partner with the conduct of the matter. 

7.                  The plaintiff in an affidavit in January 2010 deposed that Mr Pugh painted portraits of many prominent Australians and that she had numerous dealings with many of his subjects.  The plaintiff wrote an introductory essay for the National Portrait Gallery website about a retrospective of his work in 2005-2006 in Canberra.  She has written a book, Unstill Life, which is an account of her life with Mr Pugh and which was published nationally by a Sydney-based publisher during 2008. 

8.                  The plaintiff has been conducting research through Canberra institutions including the National Library and the National Archives which she intends to publish in book form.  She has been working in collaboration on a project for a book to raise money for the rose gardens at Old Parliament House.

9.                  She lived in New South Wales between 1994 and 2001 and has a wide circle of friends and acquaintances in that State.  She was curator of two exhibitions at a gallery in Sydney in 2008 and was a curator of exhibitions during 2010. 

10.              She says that she expects to call a number of residents of New South Wales and this Territory to give evidence of her reputation.  She had not yet approached them when she affirmed her affidavit.  She expects that more of her witnesses will come from New South Wales than from Victoria.

11.              She says that her only source of income is a Commonwealth age pension.  She has no assets of any substance.  If the proceedings are transferred to Victoria, she says that she will need to find Victorian lawyers with appropriate experience who are willing to act for her on a speculative basis.  She says that she lacks the means to fund the proceedings from her own resources. 

12.              After I heard the application for transfer and reserved my decision, the plaintiff’s solicitor filed an application seeking leave to adduce further evidence.  The nature of the evidence was that the plaintiff and her partner, Mr Kinsela, intended to move from Melbourne to Young, a country town in New South Wales.  Young is some 150 km north-west of Canberra.  Her solicitor gives this evidence on information and belief, and says that Young is her partner’s home town.   The plaintiff has since affirmed an affidavit in which she says that she commenced paying rent on a house in Young in mid-December 2010 and moved all her belongings into the house at the end of December. She says that she intends to remain living there with her partner.

13.              The defendants initially opposed the plaintiff’s application to reopen and to adduce this fresh evidence. I am satisfied that in the unusual circumstances of this case, she should be permitted to do so. Her change of residence from Melbourne to Young is relevant to the application for transfer and is a fresh factual development since the original hearing. In an application for a cross-vesting transfer, which can be made at any time and may be made on the court’s own initiative, it would be artificial in the extreme to determine such an application in the absence of relevant factual evidence of such a nature. Accordingly I propose to admit into evidence the affidavit of the plaintiff’s solicitor, Mr Lucas, sworn on 23 November 2010 and the affidavit of the plaintiff affirmed on 1 February 2011.

14.              Those affidavits are very brief and descend to no detail as to the plaintiff’s reasons for moving from Victoria to New South Wales or the considerations which she weighed up in making her decision to move. It has not, however, been suggested by the defendants that her reasons for moving were other than genuine, or that she moved with any intention of improving her prospects of defeating the application for transfer. The plaintiff’s change of residence seems to me a factor which to some extent reduces the weight of the total factors which would favour a transfer to Victoria. I take account, at the same time, of the fact that the plaintiff has chosen to move from Melbourne to Young in the knowledge that the defendants were seeking a transfer of her action to Victoria, that their application for transfer had been heard and the evidence on both sides received. The plaintiff carried out her move in the knowledge that she was moving from the city where, depending upon the decision of this court, the action might ultimately be heard.

15.              Jurisdiction to transfer a proceeding in the present circumstances is conferred by section 5(2)(b)(iii) of the Cross-Vesting Act.  Omitting the balance of the section, the provision reads:

 

 

 

5 Transfer of proceedings

 

(2)   If –

 

(a)   a proceeding (in this subsection called the relevant proceeding) is pending in the Supreme Court (in this subsection called the first court); and

 

(b)   it appears to the first court that –

 

.   .   .

 

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;

 

the first court shall transfer the relevant proceeding to that other Supreme Court.

 

16.              Legislation governing claims for damages for defamation in this Territory is found in chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT).  Chapter 9 was inserted in the Act with effect from 2006 as part of a national drive to achieve uniform defamation laws in Australia.  The provisions are not verbatim around the country but are generally to the same effect, with the exception of provisions about jury trial.  In most States, including Victoria, a party to a defamation action may elect for trial by jury on issues other than damages.  In other jurisdictions, including this Territory, there is no such right of election. 

17.              Juries tend to be widely utilised in civil actions in the Supreme Court of Victoria.  In contrast, there has not been a civil jury trial in this Territory for many years, if ever.  One example can be found of an order in this court for trial of a defamation action with a jury: Higgins J made such an order in O’Connor v Nationwide News Pty Ltd [1995] ACTSC 112 in circumstances where the plaintiff was a judge of the Federal Court of Australia, as were all the judges of this court.  The action was settled before it became necessary to empanel a jury.  Since 2002 section 22 of the Supreme Court Act 1933 (ACT) has provided that in all civil proceedings trial must be by the court without a jury.

18.              Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) includes section 123 (choice of law for defamation proceedings).  Subsection 123(2) provides that if matter is published in more than one State or Territory, the substantive law to be applied is the law applicable in the State or Territory with which the harm occasioned by the publication as a whole has its closest connection.  Subsection (3) permits the court, in determining the “closest connection” issue, to take into account the place where the plaintiff was ordinarily resident at the time of publication; the extent of publication in each relevant State and Territory; the extent of harm sustained by the plaintiff in each relevant State and Territory; and any other matter the court considers relevant. 

19.              The Melbourne solicitor for the defendants has expressed in an affidavit the expert opinion, based upon more than twenty years experience as a solicitor in defamation, that “the Australian jurisdictional area to which After Fire and the proceeding has its closest connection is (the) State of Victoria.”.  It does not seem to me that this opinion evidence is of assistance.  In the first place, the solicitor does not appear to have focused on the fact that it is the harm occasioned by the publication as a whole which must be looked at in determining the “closest connection” issue.  This seems to me to place the focus on the damage caused to the plaintiff by the publication of the defamatory matter, something which may not be able to be determined until evidence has been given at trial.  Secondly, the “closest connection” determination is one for the court and is not a matter for expert opinion by a solicitor.  In any event, it seems to be common ground that the substantive law contained in the Defamation Act 2005 (Victoria) and chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) is the same.  The only difference seems to relate to the mode of trial, a procedural rather than substantive factor.  The solicitor for the defendants has referred in his affidavit to the common law of Victoria.  It seems now to be generally accepted that the common law is uniform throughout Australia and does not vary from one State or Territory to another: see Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563.

20.              Counsel for the plaintiff submits that a jury trial in Victoria would take much longer than a judge-alone trial in this Territory.  He relies on two recent extrajudicial papers by the NSW Chief Judge at Common Law, the Hon Justice Peter McClellan, to the effect that based on recent experience of the Supreme Court of New South Wales the length of defamation trials where there is a jury is likely to be three times as long as a trial by judge alone.  Justice McClellan referred to two recent defamation cases conducted in Sydney.  It is not apparent from the references whether one of those was a jury trial and the other a judge-alone trial, with the jury trial taking three times as long as the judge-alone trial. 

21.              By contrast, Rares J (an additional Judge of this court) in ordering a jury trial in a defamation action in the Federal Court of Australia, rejected a submission by the plaintiff that the length of the trial would increase from one to two weeks in front of a judge to four to five weeks with a jury.  His Honour’s view was that it was unlikely that the length of the trial would be any greater with a jury: Ra v Nationwide News Pty Ltd [2009] FCA 1308 at [28].

22.              Generally the fact that one party wants a jury trial and the other does not will be a neutral factor on a cross-vesting transfer application.  The perceived benefit to the defendant of a jury trial in Melbourne is balanced by the perceived benefit to the plaintiff of a judge-alone trial in Canberra.  On the material before me I am not persuaded that there is any particular benefit or detriment to either side arising from whether the trial is conducted with or without a jury. 

23.              The principles to be applied on a transfer application were discussed at considerable length by the High Court of Australia in BHP Billiton Ltd v Schultz [2004] 221 CLR 400.  Although the court divided 4-3 on the outcome, there was unanimity that the plaintiff’s choice of forum is not a matter to be given any weight.

24.              In the present case, as I have said, the plaintiff was living in Melbourne when she began her action. Her move to New South Wales seems to have been simply a personal choice, and something she has done in the knowledge that transfer to Victoria might be ordered. The defendants are both based in Melbourne. Although sales of the book complained of were modest, there were more sales in Victoria than any other State, and ten times as many as in this Territory.

25.              It would be inappropriate for me to make a finding for the purposes of the application as to the State or Territory with which the harm occasioned by the publication as a whole has its closest connection. In the first place, I have barely any evidence upon which such a finding could be based. Secondly, any such finding would be for the purposes of the present application only and would not bind the parties or the trial judge at the trial of the action. The decision is likely to depend on evidence given during the trial.

26.              I am satisfied on the pleadings and evidence adduced on the hearing of the application, including the fresh evidence, that the Supreme Court of Victoria is the more appropriate court to determine the action, rather than this court. I am persuaded that it is in the interests of justice that the action be determined by the Supreme Court of Victoria.

27.              I remark in passing that whilst there is no appeal from an order for transfer under the Cross-Vesting legislation, there is nothing to prevent a subsequent application for transfer back to this court, or to some other court, as the proceeding develops. If, for example, it turned out as the issues were narrowed that virtually all of the witnesses lived close to a capital city, whether Canberra, Melbourne or somewhere else, it would remain open to the Supreme Court of Victoria to reconsider the question, either on application by a party or of its own motion, and if so persuaded, to order a further transfer.

28.              The proceeding will be transferred to the Supreme Court of Victoria.

 

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

 

Associate:

 

Date:                     18 March  2011

 

 

 

 

Counsel for the plaintiff:                                Mr E A Lucas

Solicitors for the plaintiff:                              Colquhoun Murphy

Counsel for the defendant:                             Mr CM Erskine SC

Solicitors for the defendant:                           Meyer Vandenberg as agents for

                                                                        Tress Cox (Melbourne)

Date of hearing:                                              26 March 2010, 4 February 2011

Date of judgment:                                           18 March 2011