Page 23 - Week 01 - Tuesday, 14 February 2006
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They are suing him in the ACT—and we need to protect the ACT from that level of forum shopping.
Where did Peter Costello and Tony Abbott initiate their defamation action? Jeez, there are a lot of Liberals involved in defamation actions! Where did Peter Costello and Tony Abbott pursue their defamation action? In the ACT. Why didn’t they pursue it in New South Wales or in Melbourne, where they have reputations, the places in which they and their families lived and in which the nefarious activities that were alleged to have been a part and parcel of their lives occurred? Their reputation, their families, those issues around which they sued, were all part of their lives in Melbourne, but they sued in the ACT.
Why did they sue in the ACT? Because they felt that there was a monetary advantage to them in suing in the ACT. There was no advantage to us. It cost us thousands—probably hundreds of thousands—of dollars. Forum shopping is a reality. It was as a result of perceived benefits that would accrue to Peter Costello and Tony Abbott that they initiated their defamation action in the ACT. It is because of the perceived benefit, or the fact that this is the only place in which Westfield could have sued John Brogden, that this is where Westfield are suing John Brogden. It is just a bit of Realpolitik, isn’t it? It is just a reflection of the reality of life within this federation that, if every jurisdiction in Australia decides that corporations with more than 10 employees that are not essentially associated with charity for public purposes can only sue in the ACT, they are all going to sue in the ACT.
Mr Mulcahy: Did you argue against it?
MR STANHOPE: Yes. I do not believe the ACT should be the home of every defamation action in Australia. So that is my position on that. I simply do not believe that we should be the honey pot for those wishing to sue. I have great respect for the role that our companies and corporations play in the life of the nation and their fundamental importance; do not get me wrong. But the context of defamation and how the action arose was that it arose in the common law, through that individual personal harm that is suffered by a person. I think the case law and the common law lead you inexorably to the conclusion that the law of defamation is about the scarification that an individual suffers—the enormous personal harm and hurt to personal and individual reputation.
It is a truism—I cannot quite remember the expression but it always struck me as a classic—that the difficulty in dealing with companies is that they have neither a consciousness to prick nor a soul to kick. It is one of the difficulties in applying the law of defamation to large companies. Individual members of a corporation, as the shadow Treasurer indicates, might suffer some personal hurt at a broad-brush allegation of “you are all corrupt; you are all taking bribes”. I do not assume that you would win—I assume you would lose—a defamation action against the Australian Wheat Board today if you made a similar allegation. With the example that the shadow Treasurer uses, there would be nobody on the Australian Wheat Board rushing out and pursuing a defamation action against such a suggestion.
I accept that individuals within an organisation can be dreadfully, personally, damaged by a broadscale allegation such as that. But, then again, think about the genesis of the tort of defamation. I am one of those that are inclined to think that a large corporation that is
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