Aopi v Rapke [2000] NSWSC 1195

New South Wales Supreme Court

CITATION : Aopi v Rapke [2000] NSWSC 1195 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20585/00 HEARING DATE(S) : Monday, 11 December 2000 JUDGMENT DATE : 11 December 2000

PARTIES : Gerea Aopi (Plt) Howard Rapke (Def) JUDGMENT OF : Levine J

COUNSEL : S Littlemore QC (Plt/resp) T Blackburn (Def/appl) SOLICITORS : Tress Cocks & Maddox (Plt/resp) Blake Dawson Waldron (Def/appl) CATCHWORDS : Cross vesting LEGISLATION CITED : Jursidiction of Courts (Cross vesting) Act 1987 Defamation Act 1974 Bakinvest AG vSeabrook & Ors (1988) 13 NSWLR 711 CASES CITED : Laing-Peach v The Cairns Post Pty Ltd, 20 October 1989 Waterhouse v The Herald & Weekly Times (10 June 1997) 1997 A Def R 52,090 DECISION : See para 22

DLJ:1 (Ex Tempore - Revised) [2000] NSWSC1195

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No.20585/00

JUSTICE DAVID LEVINE

MONDAY, 11 DECEMBER 2000

GEREA AOPI (Plaintiff)

v

HOWARD RAPKE (Defendant)

JUDGMENT: (Cross vesting application) 1 HIS HONOUR: Proceedings were initiated in this Court on 27 October this year by Mr Aopi, on which date was filed a Statement of Claim. The defendant is Mr Howard Rapke, whose address in the Statement of Claim is given care of Holding Redlich, solicitors, in Sydney. An amended Statement of Claim was filed on 20 November 2000. 2 The proceedings so initiated relate to the issue by the defendant of a press release and consequential media publication of its contents, the subject of which I understand to be from the pleadings, a suit brought by what is described as 'the Independent State of Papua New Guinea, and that State's Public Offices Superannuation Fund against certain defendants in respect of a real estate transaction in the State of Queensland. 3 Upon the service of process a notice of motion was filed by the defendant. The first order sought was that the Court decline to exercise jurisdiction under SCR Pt 11 r 8. Alternatively an order was sought that the proceedings be cross-vested to the Supreme Court of Victoria. Whilst the first prayer was not abandoned, the motion was argued before me today in respect of the second. 4 In support of the applicant's motion I have read the affidavit of Fiona Kerr sworn 7 December. Miss Kerr swears to the defendant being a partner of the law firm, Holding Redlich, that he lives and works in Melbourne, and does not conduct any part of his legal practice in the State of New South Wales. 5 Holding Redlich acts for the plaintiffs in the other litigation to which I have referred, and that litigation is conducted by the Melbourne office of that firm. That Melbourne office, however, has offices in Sydney. 6 The publication Miss Kerr swears to is that the matter complained of was published by facsimile to a journalist in the Melbourne offices of "The Australian Financial Review", and the evidence in her affidavit would point to there being little issue as to the named defendant, Mr Rapke, being the publisher in the first instance. 7 "The Australian Financial Review" as a matter of notoriety, but also as a matter of the evidence constituted by Exhibit 1, is published in Victoria. The plaintiff's action of course pleads causes of action based upon republication in "The Australian Financial Review". 8 Miss Shirley Lasky of Tress Cocks & Maddox swore an affidavit of 8 December in her capacity as solicitor employed by the firm acting for the plaintiff, Mr Aopi. The import of her affidavit and oral testimony, when cross-examined by Mr Blackburn, I am persuaded, is that Mr Aopi is a visitor to Sydney at least monthly for various commercial and personal reasons. 9 Even taking into account the nature and form of Miss Lasky's evidence being on information and belief, it is evidence that enables me to come to the view, first, that on the probabilities Mr Aopi is such a visitor; second that he is such a visitor for such purposes; and third, any reputation he enjoys is enjoyed in New South Wales, not to the exclusion of other places but as the predominant area of his reputation in this State and in this country. 10 Both sides have sought to deal with the question of witnesses in the context of defences, not defences that will be relied upon, but may be relied upon. Insofar as it may be the case, the defences of justification, privilege and comment will arise in this litigation, the material points to witnesses being called from places other than Victoria. Namely Papua New Guinea, Queensland and this State. If there is to be a witness from Victoria, it would be the defendant, a member of the firm that operates in Sydney. 11 The motion seeks relief under s5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act (1987) which provides that the Court shall transfer the relevant proceeding to another Supreme Court if it is in the interests of justice that it be determined by some other Supreme Court. 12 The legislation has received judicial consideration, particularly by the Court of Appeal twelve years ago in Bankinvest AG v Seabrook & Ors (1988) 13 NSWLR, 711. The most familiar passage is in the judgment of Rogers AJA at 727 to 728. 13 In Laing-Peach v The Cairns Post Pty Ltd, Hunt CJ at CL, (20 October, 1989) said at page 6: "In particular, what has to be determined is which is the appropriate forum for the trial of the action - that is, in which forum the case may be tried more suitably for the interests of all parties in the ends of justice. The appropriate forum is said to be that with which the action has the most real and substantial connection. Those factors which are to be looked for include the convenience or expense of fighting the case in the one or in the other jurisdiction, the law governing the relevant transaction, and the places where the parties respectively reside or carry on business." 14 What his Honour there said was referred to by myself in Waterhouse v The Herald & Weekly Times, (10 June 1997) 1997 A Def R 52,090. 15 The appropriate forum is said to be, as his Honour said, that with which the action has the most real and substantial connection. 16 The plaintiff, I assume, is a citizen of the independent State of Papua New Guinea, the defendant is a resident of the State of Victoria, to that extent their connection with the State of New South Wales, leaving aside citizenship and distance, is probably equal. That which attracts New South Wales is that the substance of the case will be the publication in "The Australian Financial Review" in this State where the evidence discloses Mr Aopi enjoys a reputation, which he visits, in which his lawyers practice, and in which the defendant's firm has a practice. 17 One cannot say, as I have already remarked, much about how many, and on what issues witnesses will be called, but on the issue of publication, one would have thought evidence is unlikely to be required. 18 The factors to which I have referred are such as to persuade me not to grant the relief sought in the notice of motion. The interests of justice must include considerations of the availability of mechanisms within a court for the disposition of the substantive legal isues. Those substantive legal matters, as the pleadings presently indicate, will relate to the law of New South Wales, though not to the exclusion, at least, in respect to a damages claim to any relevant law, if that be the law at the time, of another state. 19 A factor, in addition to those which have predisposed me to refuse the relief, is the mechanism under s 7 A of the Defamation Act, which permits a relatively prompt consideration by the jury of the most fundamental issue in the action, whether the publication carries the imputations, and whether they are defamatory. Mr Blackburn rightly pointed out that as an independent factor the clearer the libel the less weight might be attached to it. The clearer the question of capacity and fact, the less weight might be attached to the availability of section 7 A. 20 But it is a factor, it exists, as does the operation of the new Practice Note 114, the purpose of which is to ensure the speedy, efficient and cheaper resolution of remaining issues, and one function of which is to provide a mechanism for the Court to monitor the progress of a case such as this. 21 It can now be taken that any litigation instituted seeking damages for defamation in this State will be before the Court at least once every six months. The situation will not be permitted to arise where matters are out of court without any date for any purpose. 22 For the reasons I have initially given, but in addition to which I have referred to section 7 A, I dismiss the motion. The applicant is to pay the respondent's costs of the motion. **********