Forum Shopping in Australian Defamation Litigation

Abstract

This dissertation explores how Australian private international law accommodates forum shopping in defamation litigation. Forum shopping is the commencement of litigation in one court rather than another, made possible by the fact that each of the courts would possess authority to decide the dispute. The dissertation thus considers ‘cross-border defamation’: defamation cases with connections to a legal system other than the forum. In the digital era, cross-border defamation is increasingly common. As Australia is a federation, a case may have a connection to a legal system other than that of the forum while still remaining wholly Australian in character. The dissertation explores how these intra-Australian or intranational defamation cases compare to transnational defamation cases. When litigated in Australia, both intranational and transnational defamation cases are subject to Australian private international law. The dissertation answers two questions. First, to what extent does Australian private international law allow forum shopping in cross-border defamation litigation? Second, to what extent should Australian private international law allow forum shopping in cross-border defamation litigation? Australian courts can and will hear cross-border defamation matters with strong connections to foreign systems of law. Plaintiffs may craft their pleadings to avoid application of foreign law, and to fend off forum non conveniens arguments, while still seeking damages for damage properly located abroad. Similarly, with respect to intranational forum shopping by defamation plaintiffs commencing in the Federal Court of Australia, there is little that can be done by defendants to overturn a plaintiff’s choice of forum. Australian private international law is properly characterised as a ‘plaintiff’s picnic’ for would-be forum shoppers. It is argued that forum shopping is defensible in defamation litigation.