AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW SYDNEY CONFERENCE

Transcription

1 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW SYDNEY CONFERENCE MOOT PROBLEM Phase 1 Proceedings in New South Wales Cuthbert Sterling is a well-known, New York-based media baron with global media interests, and a famous passion for Peking Duck. Originally, an Australian citizen, he renounced that citizenship in 1986 and took US citizenship, publicly vowing never to set foot in Australia again. Letter M. Davidman is the host of a current affairs program on a rival US network but was formerly a high profile presenter on the Sterling network. He has made no secret of his dislike for Sterling following his dismissal and a subsequent exposé in the Sterling press about his complex private life. Davidman has never left the island of Manhattan. In late 2009, Davidman presented a biographical portrait of Sterling on his program in which he described Sterling as obsessive, indifferent to the truth of media reports and focussed exclusively on circulation, tending to megalomania in both his business and private life, and as a person who actively interfered in editorial policy for personal political purposes. Davidman s regular US audience is in excess of 10 million viewers per show.

2 2 The Davidman show is not broadcast by any network in Australia but has a small following in Australia amongst a group of fans who download podcasts from the Davidman website. There is evidence that each Davidman show is downloaded by Australian fans throughout Australia on average 1268 times per episode. The rules of the Supreme Court of New South Wales authorize service of process on a defendant abroad where: (a) (b) the proceedings are founded on a cause of action arising in New South Wales, the proceedings are founded on a tort committed in New South Wales, and or where (c) the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in New South Wales caused by a tortious act or omission wherever occurring. On September 11, 2009, Sterling issued proceedings in the Supreme Court of New South Wales claiming damages for libel/defamation in both Australia and in the United States. The proceedings were served on Davidman in the United States. He instructed NSW attorneys who advised him that he could challenge the jurisdiction of the NSW Court and/or seek a stay of those proceedings without entering an appearance or submitting to jurisdiction. He was also advised, however, that the practice of Judge Wisecrack, the NSW defamation list judge, was to insist that the parties personally attend a mediation in Sydney before retired judge The Hon. Roger J. Andrews QC before any jurisdictional challenge would be heard.

3 3 On the advice of his attorneys and with great reluctance, Davidman broke the habit of a lifetime, flew to Australia and attended the mediation. It ended unsuccessfully in a shouting match with Davidman storming out. At the airport, whilst Davidman was waiting for his plane, he was personally served with the Statement of Claim in the NSW proceedings. The jurisdictional challenge/stay application was heard the following week, having been urgently removed to the High Court of Australia. A. S. Bell SC appears for Davidman. J.T. Gleeson SC appears for Sterling. [Times to be Bell 15 minutes; Gleeson 20 minutes; Bell 5 minutes reply.] [Phase 1 should raise the following issues: Whether the Court had jurisdiction in respect of the US component of the claim following service on Davidman in New York; Whether or not the Court acquired personal jurisdiction over Davidman as a result of his being re-served with the Statement of Claim at Sydney airport; Whether or not the proceedings should be stayed in any event on forum non conveniens grounds (including the issue of the appropriate test for such a stay) Relevant cases: Voth v Manildra Flour Mills Pty Ltd (1991) 171 CLR 538 Dow Jones v Gutnick (2002) 210 CLR 575

4 4 Laurie v Carroll (1958) 98 CLR 310 Maharanee of Baroda v Wildenstein [1972] 2 QB 283 Phase 2 Proceedings in New York The application to challenge jurisdiction/stay proceedings in New South Wales is unsuccessful. Davidman does not appear at the trial which is heard on an ex parte basis and results in a verdict in favour of Sterling for $5 million, with $200,000 attributed to damage suffered in New South Wales. In the New South Wales proceedings, Judge Wisecrack received evidence of US law relating to libel (as governing the US component of the claim) and concluded that, to be actionable, it was not necessary to show that Davidman was motivated by malice in making his remarks about Sterling. In any event, he found that Davidman was not motivated by malice according to an Australian lawyer s understanding of that concept. He did not receive any evidence, however, as to what the concept of malice entailed as a matter of US law. Even though he did not appear at first instance, Davidman could have appealed against the judgment to the NSW Court of Appeal. He did not do so. Sterling moved to enforce his judgment against Davidman in the courts of the Southern District of New York. Davidman opposes enforcement.

5 5 [Phase 2 should raise the following issues: First Amendment as a bar to enforcement of a foreign judgment; Whether or not it is a ground for refusal of enforcement if the jurisdiction of the foreign court is tag jurisdiction; Whether or not the case presents an exception to tag jurisdiction where it cannot be said that Davidman was tricked into attending; The significance or otherwise of Davidman s non-participation in the Australian trial for US enforcement purposes; Whether or not the fact that the foreign (Australian) court may have made an error in identifying the content of foreign (US) law is a ground for not enforcing the judgment; Whether or not the judgment can be enforced in part, i.e. as to the Australian damages component.]