Hayward v Barratt [2000] NSWSC 708

New South Wales Supreme Court

CITATION : Hayward v Barratt [2000] NSWSC 708 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 20126/2000 HEARING DATE(S) : 11/07/2000 JUDGMENT DATE : 11 July 2000

James R W Hayward (P) PARTIES : David John Barratt (D1) Bazza Investments Pty Limited (D2) JUDGMENT OF : Young J

COUNSEL : T D Blackburn (P) A Harris QC and S T White (D) SOLICITORS : Piper Alderman (P) Phillips Fox (D) CATCHWORDS : DEFAMATION [79]- Qualified privilege- Malice- Relevant fact is defendants' knowledge of alleged fact not its objective truth. PROCEDURE [26]- Cross-vesting- Application before issues settled often premature- Defamation proceedings- Publication in NSW and elsewhere- On balance order refused. LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5 Bainton v Sheahan - 2 March 1990, unreported CASES CITED : Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Makim v John Fairfax & Sons Ltd - 15 June 1990, unreported DECISION : Notice of motion dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

YOUNG J

TUESDAY 11 JULY 2000

20126/2000 - HAYWARD v BARRATT & ANOR

JUDGMENT

1 HIS HONOUR: This is a motion brought by the defendants under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 to transfer these defamation proceedings to the Supreme Court of South Australia. 2 The Court of Appeal in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 laid down the way in which courts should approach these sort of applications in this State. As is pointed out in the written submissions of Mr Blackburn for the plaintiff, those principles are not the same as apply in most States of the Commonwealth. However, as the Court of Appeal has spoken, and as it appears from the judgments in the Bankinvest case that it was more or less a guideline judgment, I will follow what is there laid down. Freely interpreted, that means I must undertake a case management exercise to see what would be the best order to make to facilitate the trial of the litigation, whether that be in this Court or if the order for transfer is made, in a South Australian court. 3 Mr Blackburn, however, says in defamation cases it is a significant factor that the plaintiff has sought to be vindicated in New South Wales, and that he has commenced proceedings here. I agree that that is a factor that one must take into account in the general mix. 4 Generally speaking, the Court in New South Wales takes the view that if proceedings are properly commenced in New South Wales, and if there are sufficiently strong apparent connections with New South Wales, then one waits to see what the issues are between the parties before ordering that the proceedings be cross-vested. Normally, that means that one waits until after the pleadings and interlocutory steps are concluded, because only then does one know what the real issues are. Only after one knows what the real issues are can one work out what is the most convenient place to hold the trial, who the likely witnesses will be, what are the documents that are going to be tendered and so on. Ascertaining the issues in the case is not, of course, always conclusive because sometimes the question of interrogatories and discovery and interlocutory process may also impinge on what is the best place in which the case can be heard. However, more often than not, one works out the issues first. 5 In the instant case the statement of claim has been filed but no other pleadings have yet been filed. There is some suggestion in correspondence between the solicitors, and in the written submissions that have been made by Mr A Harris QC and Mr S White for the defendants, as well as by Mr Blackburn for the plaintiff, as to what issues may arise. However, I have got the general sense during the submissions that there is deliberately an area where people are not yet ready to commit themselves as to exactly what issues are going to be litigated at the final hearing or at any interlocutory hearing of these proceedings. 6 It would appear at this stage that the main defence will be a defence of qualified privilege. It would also appear that there is going to be an issue as to whether the defendants' comments when made were malicious, there will be matters dealing with the context in which the second publication of alleged defamatory material was made, and there will also be questions as to what were the facts underlying any comment. 7 The written submissions of Mr Harris QC and Mr White outline a number of factors in para 22 as to why South Australia is the more appropriate State in which the trial should be held. In order to make some of these factors sensible in the current decision it is necessary briefly to set out the factual material contained in the statement of claim. 8 The plaintiff says that at all material times he was the chairman of a company called Southern Equity Holdings Limited (the "Company"), which was incorporated in the State of South Australia. The first defendant also resides in South Australia: he is alleged to control the second defendant. 9 It is alleged that there were two defamatory publications made by the defendants: (a) by letter dated 10 June 1999, which was sent to all shareholders of the Company; and (b) statements made at the annual general meeting of the Company in Sydney on 30 November 1999. It would seem that of the shareholders in the Company 133 reside in South Australia, 135 in New South Wales, and others in various other States of the Commonwealth, all of whom would have received the alleged defamatory publication of 10 June 1999. 10 The intimation I got from submissions was that there would be some interlocutory proceedings before too long in this case, no matter where it was tried, involving the possible striking out of some of the imputations, and perhaps even more radical striking out of parts of the statement of claim, and that there may be applications for discovery and interrogatories. However, the defendants do not yet seem to have firmly committed themselves as to the exact nature of their defence, and probably will not do so until their advisors consider it is appropriate to do so. This makes it a little difficult to evaluate the points made in para 22 of the defendants' submissions, and I will discount some of them for that very reason. The application is made at an earlier stage in the proceedings than would normally be expected, but because of the rather strange way in which defamation cases are tried these days it is probably best to take the view that this sort of case is an exception to the general rule. However, that still does not make my task any easier. 11 The first series of points made in para 22 of the defendants' submissions deal with the residence of the parties, the fact that the Company is a company that is incorporated and carries on business in South Australia, and that the solicitors for the plaintiff and defendants have offices in South Australia, where senior counsel for the defendants mainly practises. 12 In some cases those are very significant factors, and it was pointed out to me that in the unreported decision of Hunt J in Bainton v Sheahan (2 March 1990, unreported), it appeared to be the controlling factor of Hunt's J decision to send that defamation case to South Australia. 13 However, when one has businessmen in a company that carries on business throughout Australia, and one has shareholders throughout the Commonwealth, and one realises that litigation will probably cost about $10,000 a day, and airfares are only perhaps $700 per trip, the factor is not of very great moment. 14 Far more significant is the matter set out in sub-para (g) of para 22 of the defendants' submissions. There is a real likelihood that the trial may involve voluminous material in relation to the affairs (of various companies) which material is located in South Australia, and will significantly increase the cost of any trial located in New South Wales.