In the past people wanting to sue newspapers or the electronic media often did so in the ACT where the law is often better for plaintiffs and more difficult for publishers. Also, some plaintiffs do not like juries, so they sue in the ACT where there are none in the civil cases. For example, sports and pop stars like juries; politicians, lawyers and real-estate agents are less likely to do so. Technical cases are often brought to the ACT as well.
It is called forum shopping. It means the ACT court list gets clogged with out-of-town cases, delaying ACT trials.
As a result of a judgment brought down in the Federal Court last week, this will be more difficult.
Anthony John Earl Grey sued David Syme and Co, publisher of The Age, Melbourne, over the publication of a cartoon. The court ruled that under Commonwealth and ACT law the plaintiff was restricted, in this case, to suing over publication in the ACT alone, and not in the whole of Australia.
The Age publishes only a few thousand copies in the ACT, so Mr Grey’s damages would be trivial compared with winning a case on the basis of The Age’s circulation in Victoria.
It appears the test is whether the newspaper company is present and carried on business in the ACT, as distinct from merely selling newspapers through an agent here.
The effect of the ruling on Sydney Fairfax and Rupert Murdoch’s News Ltd newspapers is uncertain. They have offices here, but whether that is enough to attract the full jurisdiction of the ACT Supreme Court is another matter.
It is certainly true that the waters are muddied sufficiently for any plaintiff to think twice before suing an out-of-town newspaper in the ACT. It may well be that the advantage of seeking a jury-free trial under Australia’s most restrictive defamation law will be negative by the possibility of having a procedural fight about whether the service of court process can take place outside the ACT.
It may well be electronic media would be similarly affected, that is plaintiffs would have to go to a state or territory where the broadcaster did business. It might also apply to cases other than defamation, such as road injuries caused by cars registered and insured in out-of-town company names.
Justices Bill Gummow and Terence Higgins called for a simplification of the law. Justice Higgins said he joined “”in urging that there be clearly and promptly enacted a simple, universal and single system for the service of process throughout Australia.”