Select aspects of forum shopping in Australian defamation litigation

By

8 December 2022

On 7 December 2022, Bennett hosted the event, ‘Current Perspectives on Defamation and Defamation Law Reform’, featuring Professor David Rolph, Sue Chrysanthou SC and Dr Michael Douglas. This article contains Michael’s speaking notes for the event.

This event has been branded as ‘current perspectives’ on defamation law and defamation law reform. My presentation will consider a phenomenon of the contemporary practice of defamation litigation in Australia, which has been impacted by recent legislative change to the Defamation Acts of most Australian jurisdictions.

I am speaking to forum shopping in Australian defamation litigation.

This is a big topic. You could write 100,000 words on it. And I have.¹ So this evening I will speak to only select aspects of the subject.

Forum shopping

For the uninitiated, ‘forum shopping’ means to commence litigation in one place rather than another in circumstances where more than one court would have jurisdiction—that is, ‘authority to decide’—over the underlying dispute.

The term is commonly associated with my favourite discipline: the conflict of laws, also known as ‘private international law’.

And it is often framed as a bad thing. That is, a person who goes forum shopping commits some sort of sin by choosing to sue in one place rather than another, often to maximise their prospects of success by exploiting advantages available in their chosen forum but not an alternative forum.

This orthodox view depends on the principle that like cases ought to be treated alike, and the proposition that cross-border disputes have a single ‘natural’ home.

But when a dispute concerns communication, and particularly communication on the internet, there may be no single natural forum with which the dispute has a connection. When it comes to defamation disputes, the undesirability of forum shopping is far from clear.

Who cares?

Why should we care about this? Well, as regards defo litigation in Australia, forum shopping has become a real thing.

For about a decade, the Federal Court has recognised what some have called a pure defamation jurisdiction. These days, in many cases of Australia-wide publication, a plaintiff can choose to sue in the Federal Court of Australia rather than the traditional forum of a defamation dispute, a State Supreme Court.

Many plaintiffs are choosing to sue in the Federal Court to avoid State courts’ dispositions to juries; a point I will touch on further.

But there is another kind of intra-Australian defamation forum shopping with which we should be particularly familiar as a West Aussie audience.

In 2020, the Council of Attorneys-General agreed to implement changes to the Model Defamation Provisions underlying the Defamation Acts of the States and Territories. In 2021, the changes were implemented in most of Australia, bolstering defences, changing limitation periods, and requiring a plaintiff to establish that they have suffered serious harm, among other things.

Those changes are not in force in WA or the NT. This creates an opening for a clever litigant defamed around Australia, who may seek to invoke WA law to avoid aspects of the new legislation that do not assist their case.

With that stratagem in mind, I turn to an aspect of the conflict of laws as it relates to Aussie defamation litigation: choice of law.

The applicable law for defamation litigation in WA

Australian courts can and sometimes do apply foreign law to a matter which has connections to systems of law other than the local law area. This phenomenon is sometimes called ‘choice of law’. For technical reasons, it is better understood as ‘identifying the applicable law’.

20 years ago, in the seminal case, Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, the High Court of Australia clarified that the law of the place of the wrong should apply to a cross-border defamation dispute. But how do you identify the ‘wrong’ for defamation? Well, considering the multiple publication rule, there is a discrete cause of action for each download of an online publication. If an online piece is downloaded in multiple jurisdictions, each could be its own wrong with its own applicable law. A plaintiff can avoid the mess by just limiting their pleading to publications occurring locally, and so only the local law would apply.

The Gutnick approach to choice of law was ousted by statute. Section 11 of the Defamation Act 2005 (WA) (and equivalents in other Aussie jurisdictions) provides that the law of the jurisdiction with which the harm occasioned by the publication has its closest connection applies, at least with respect to publications around Australia.

So say you have a dodgy piece in The Australian that defames a federal member for a WA seat. How does section 11 apply? You would look at where the thing has been published; presumably more in NSW and Vic than in WA. That greater scope of publication would correlate to greater damage. But the pollie’s centre of interests would presumably be in WA. I reckon there is a decent case that WA defamation law is the applicable law, even if the person commences their case over east, and even if they sue on all publications occurring in Australia.

Conversely, say a federal member in a Victorian seat has been defamed in The Australian. Could they commence litigation in WA to avoid the amended Victorian law? Well, the WA court would still apply s 11, and so they may be bound by Victorian law even in a WA court.

But consider this. What if that Victorian pollie commenced in WA, but only sued upon the reads and downloads of The Australian that occurred in WA? The text of s 11 is somewhat ambiguous, but there is a decent case that the reputation of the Victorian in Western Australia is the interest underlying the claim framed in that way. If that is right, then the plaintiff could engineer the applicable law of their choosing by engaging a Perth firm—I dunno, Bennett, for example—and then being careful and clever with pleading.

Faced with this kind of cunning, a court or a defendant may seek to have the matter transferred from the WASC to the VSC on the basis that ‘the interests of justice’ mandate a transfer pursuant to the Cross-Vesting Acts. I would argue, however, that there is nothing plainly unjust about a person suing in the forum of the place of publication, which according to Gutnick is the forum in which that person’s reputation has been damaged.

The applicable law for defamation litigation in the Federal Court of Australia

In the Federal Court, the identification of the applicable law is complicated by the federal character of the Court’s jurisdiction.

Although we have a single common law in Australia, statutes and procedural laws differ between constituent parts of the federation. Generally, according to machinery in the Judiciary Act 1903 (Cth), the Federal Court will apply the statute law in force in the jurisdiction in which it is sitting, subject to applicable choice-of-law rules and statutory direction to the contrary.

Why do we care about this technical trickiness? Well, there is a very practical benefit to the machinery of the Judiciary Act.

Section 79(1A)(b)(ii) effectively provides that the laws of the State or Territory in which the Federal Court sits shall apply in the Federal Court, except as otherwise provided by Commonwealth law.

Now consider that the Defamation Acts of the States are State law. They contain a provision concerning juries. Generally, under the Defamation Acts, a party who wants a jury is likely to get one. The situation varies a little around the Federation but that is the gist.

Well, the Federal Court does not have the same fondness for juries. Provisions in the Federal Court of Australia Act 1976 (Cth) are reinforced by practice and procedure which favours efficiency, the combined effect of which is that a defamation jury is very unlikely under federal law.

So in one of Chau Chak Wing’s defo cases (Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61), the Full Court of the Federal Court of Australia determined that the State Defamation Act’s position on juries was not the applicable law in the Federal Court.

For example, say you have a client who may have a rough trot in front of a jury. Like a bloke accused of being sleazy at the height of the #MeToo era. Forum shopping in the Federal Court may be a sound strategy.

This aspect of ‘Federal Court Forum Shopping’ is well known. There is another worth touching upon which could prove equally powerfully.

It concerns the impact of the 2021 Amendments to many of Australia’s Defamation Acts to matters in the Federal Court’s federal jurisdiction.

Those amendments do not just consider matters of substance. A significant—and in my view, deeply flawed—procedural aspect of the new provisions is the requirement that aggrieved persons engage in a concerns notice dispute resolution procedure prior to commencing defamation litigation. ADR is all well and good, especially as regards defamation disputes, but the practical effect of these amendments is that a person may have to wait more than a month from the point of publication before they can get an originating process issued. At least, that’s the case over east.

One of the reasons why this procedure is undesirable is that it seemingly prevents a person from having a ‘snap writ’ issued to urgently prevent spread of defamatory matter on the grapevine. It may still be possible to seek quia timet relief for a cause of action not yet possible to be sued upon (see, eg, Ajaka v Nine Network Pty Ltd [2022] NSWSC 632), even if the prospects of success are very unlikely. But having an originating process issued quickly may persuade a publisher to lay down their weapons quickly without bothering a duty judge. In my view, this aspect of the 2021 Amendments undermines a key purpose of the Defamation Acts: to facilitate efficient non-judicial resolution of defamation disputes.

Turning to the forum shopping point. Recall that State law does not apply in federal jurisdiction where federal law provides otherwise.

I would argue that the 2021 Amendments as regards concerns-notice faffing about are inconsistent with two federal laws: first, the Civil Dispute Resolution Act 2011 (Cth), and second, the Federal Court Rules 2011 (Cth). The latter is most important. Part 25 provides an ‘offers to settle’ regime that differs from the concerns notice dance of the 2021 Amendments. It is at least arguably that the new approach to concerns notices, which requires an aggrieved person to wait before commencing litigation, does not apply to actions commenced in the Federal Court of Australia.

This kind of reasoning has some tangential support in authority. Justice Lee has considered in recent cases that the Federal Court’s law on costs would ousts the provision in the State and Territory Defamation Acts concerning costs (see Palmer v McGowan [2022] FCA 927, [41]).

My sense is that the Federal Court will be willing to defer to the language of the Judiciary Act to prefer federal procedural laws that, in the Court’s opinion, best serve the overriding purpose of civil practice and procedure. The nonsensical concerns notice machinery of the 2021 Amendments are ripe for ousting in federal jurisdiction.

Conclusion

The subject of forum shopping in Australian defamation litigation engages with a rich body of law, which I froth over. I have enjoyed the opportunity to speak to some aspects of that law today. Thank you for humouring me.

1. My PhD thesis, ‘Forum Shopping in Australian Defamation Litigation’ (The University of Sydney, 2022), may be viewed online: <https://ses.library.usyd.edu.au/handle/2123/29430>

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.