Dow Jones & Company Inc. v Gutnick

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,McHugh,Gummow,Hayne JJ,Gaudron J,Kirby J,Callinan J
• Judgment Date: 10 December 2002
• Neutral Citation: 2002-1210 HCA A,[2002] HCA 56
• Docket Number: M3/2002
• Date: 10 December 2002

[2002] HCA 56

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

M3/2002

Dow Jones & Company Inc

Appellant

and

Joseph Gutnick

Respondent

Representation:

G R Robertson QC with T F Robertson SC for the appellant (instructed by Gilbert & Tobin)

J L Sher QC with M F Wheelahan for the respondent (instructed by Schetzer, Brott & Appel)

Intervener:

B W Walker SC with S E Pritchard intervening on behalf of Amazon.com Inc & Ors (instructed by Blake Dawson Waldron)

Dow Jones & Company Inc v Gutnick

Torts — Defamation — Publication — Internet — Computer server — Material complained of housed on computer server in United States of America — Uploaded to World Wide Web — Viewable at subscription news site on World Wide Web — Downloaded to computer in Victoria — Whether material complained of was published in Victoria.

Torts — Defamation — Publication — Single publication rule.

Private international law — Choice of law — Law of the place of the tort ( lex loci delicti) — Defamation — Damage to reputation — Where material complained of was published — Material complained of made comprehensible when downloaded in Victoria — Place of plaintiff's reputation — Victorian law governs substantive rights.

Private international law — Service out of jurisdiction — Rules of Court — Service permitted without leave of Court — Conditions of service — Action brought in respect of tort committed in Victoria — Action brought in respect of damage suffered in Victoria — Action limited to damage to reputation in Victoria — Service validly effected — Victoria a convenient forum.

Words and Phrases — ‘publication’, ‘single publication rule’.

Supreme Court (General Civil Procedure) Rules 1996 (Vic), rr 7.01(1)(i), 7.01(1)(j) and 7.05(2)(b).

ORDER

Appeal dismissed with costs.

1 Gleeson CJ, McHugh, Gummow and Hayne JJ. The appellant, Dow Jones & Company Inc (‘ Dow Jones’), prints and publishes the Wall Street Journal newspaper and Barron's magazine. Since 1996, Dow Jones has operated WSJ. com, a subscription news site on the World Wide Web. Those who pay an annual fee (set, at the times relevant to these proceedings, at $US59, or $US29 if they are subscribers to the printed editions of either the Wall Street Journal or Barron's) may have access to the information to be found at WSJ. com. Those who have not paid a subscription may also have access if they register, giving a user name and a password. The information at WSJ. com includes Barron's Online in which the text and pictures published in the current printed edition of Barron's magazine are reproduced.

2 The edition of Barron's Online for 28 October 2000 (and the equivalent edition of the magazine which bore the date 30 October 2000) contained an article entitled ‘Unholy Gains’ in which several references were made to the respondent, Mr Joseph Gutnick. Mr Gutnick contends that part of the article defamed him. He has brought an action in the Supreme Court of Victoria against Dow Jones claiming damages for defamation. Mr Gutnick lives in Victoria. He has his business headquarters there. Although he conducts business outside Australia, including in the United States of America, and has made significant contributions to charities in the United States and Israel, much of his social and business life could be said to be focused in Victoria.

3 The originating process in the action which Mr Gutnick brought against Dow Jones was served on it outside Australia. The writ recorded that service was effected in reliance upon two of the provisions of the Supreme Court (General Civil Procedure) Rules 1996 (Vic) (‘the Victorian Rules’) (rr 7.01(1)(i) and 7.01(1)(j)) providing for service of process outside Australia. Under those Rules, the scheme of which is broadly similar to that considered in Agar v Hyde1, a plaintiff may serve originating process without first obtaining the leave of the Court. If the defendant does not submit to the jurisdiction by filing an unconditional appearance, the plaintiff must obtain leave to proceed 2, demonstrating that the originating process makes claims of a kind which one or more of the paragraphs of r 7.01(1) mention. If the defendant wishes to contend that the Court should decline to exercise its jurisdiction or should set aside service, the defendant may enter a conditional appearance and apply for either or both of two forms of order — an order staying further proceedings in the matter or an order setting aside service of the originating process.

4 The principal issue debated in the appeal to this Court was where was the material of which Mr Gutnick complained published? Was it published in Victoria? The answer to these questions was said to affect, even determine, whether proceedings in the Supreme Court of Victoria should, as Dow Jones contended, be stayed on the ground that that Court was a clearly inappropriate forum for determination of the action 3. The procedural steps which give rise to that issue can be described as follows.

The proceedings below

5 Dow Jones entered a conditional appearance to the process served upon it. It applied to a Judge of the Supreme Court of Victoria (Hedigan J) for an order that service of the writ and statement of claim be set aside or an order that further proceedings in the matter be permanently stayed.

6 In the course of the proceedings before the primary judge, Mr Gutnick proffered an undertaking to sue in no place other than Victoria in respect of the matters which founded his proceeding. The primary judge recorded in his reasons that Mr Gutnick ‘seeks to have his Victorian reputation vindicated by the courts of the State in which he lives [and that he] is indifferent to the other substantial parts of the article and desires only that the attack on his reputation in Victoria as a money-launderer should be repelled and his reputation re-established’.

7 A deal of evidence was led before the primary judge seeking to establish the way in which, and the place at which, information found at a website like WSJ. com is published. It will be necessary to say something more about what that evidence revealed. His Honour concluded that the statements of which Mr Gutnick sought to complain were ‘published in the State of Victoria when downloaded by Dow Jones subscribers who had met Dow Jones's payment and performance conditions and by the use of their passwords’. He rejected Dow Jones's contention that the publication of the article in Barron's Online occurred at the servers maintained by Dow Jones in New Jersey in the United States. Being therefore of the opinion that the defamation of which Mr Gutnick complained had occurred in Victoria, Hedigan J concluded that Victoria was not a clearly inappropriate forum for trial of the proceeding and dismissed Dow Jones's application.

8 Dow Jones sought leave to appeal to the Court of Appeal of Victoria but that Court (Buchanan JA and O'Bryan AJA) refused leave to appeal, holding that the decision at first instance was plainly correct. By special leave, Dow Jones now appeals to this Court. The appeal to this Court should be dismissed.

Undisputed principles

9 Argument of the appeal proceeded from an acceptance, by both parties, of certain principles. First, it is now established that an Australian court will decline, on the ground of forum non conveniens, to exercise jurisdiction which has been regularly invoked by a plaintiff, whether by personal service or under relevant long-arm jurisdiction provisions, only when it is shown that the forum whose jurisdiction is invoked by the plaintiff is clearly inappropriate 4. Secondly, it is now established that in trying an action for tort in which the parties or the events have some connection with a jurisdiction outside Australia, the choice of law rule to be applied is that matters of substance are governed by the law of the place of commission of the tort 5. Neither party sought to challenge either proposition. Rather, argument focused upon where was the place of publication of the statements of which Mr Gutnick complained. Dow Jones contended that the statements were published in New Jersey and that it was, therefore, the law of that jurisdiction which would govern all questions of substance in the proceeding. This was said to have two consequences: first, that the claims made in the originating process were not of a kind mentioned in any of the relevant paragraphs of r 7.01(1) of the Victorian Rules and, secondly, that because the law governing questions of substance was not Victorian law, Victoria was a clearly inappropriate forum for the trial of the proceeding.

‘Jurisdiction’ and ‘publishing’

10 Two of the terms that must be used in considering the questions that arise in this matter are terms that can give rise to difficulty. ‘Jurisdiction’, as was pointed out in Lipohar v The Queen6, is a generic term 7 that is used in a variety of senses. In the present matter there are two distinct senses in which it is used –

first, as referring to the amenability of a defendant to process in such a way as will give a court authority to decide the controversy which that process seeks to agitate and, secondly, as referring to a particular territorial or law area or law district.

11 ‘Publishing’ and its cognate words is also a term that gives rise to difficulty. As counsel for the interveners pointed out it may be useful, when considering where something is published to distinguish between the (publisher's) act of publication and the fact of publication (to a third party), but even that distinction may not suffice to reveal all the considerations relevant to locating the place of the tort of defamation.

WSJ.com

12 Since so much was made in argument, both in this Court and in the courts below, of what was said to be the unusual features of publication on the...