Almost everyone has come across the Evony adverts, most of them showing scantily clad women and promising that you can 'play discretely'. One gaming blogger, Bruce Everiss has taken a stand against Evony, mostly for allegedly spamming his forum and using unethical business practices.
The question is whether a NSW plaintiff can sue a UK defendant. The Supreme court in NSW can have jurisdiction to hear a matter concerning a defendant from a foreign jurisdiction. Gutnick v Dow Jones is on point here. Basically the High Court held that Gutnick (an Australian citizen) could sue Dow Jones (based in NY I believe) in Victoria, Australia as the damage to Gutnick’s reputation occurred in Victoria when subscribers in Victoria to the online magazine published by Dow Jones read a defamatory article about Gutnick. Here, the court had jurisdiction to hear the matter as the tort occurred in Victoria.
In NSW, the court have a 'submit and see what happens' approach to service on an overseas defendant. If the defendant fails to appear, the plaintiff then needs to seek the leave of the court to proceed with the litigation, where the court will decide if they are a 'clearly inappropriate forum' to hear the matter and that the claim has some success. There is also a lot of doubt surrounding the enforceability of the judgement (which the court does not take into account here). Without the defendant having assets in the jurisdiction, it may be difficult to enforce any judgement against them.
It will be interesting to see if this progresses, or whether this is simply a scare tactic.
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3 comments:
What if the plaintiff isn't in Australia either? What is the court's approach to what looks like libel tourism?
I believe that the plaintiff is technically allowed to bring an action in any jurisdiction. However, it would be open to the court to decline jurisdiction as they are a 'clearly inappropriate forum' - which is likely where the action is in no way connected to that jurisdiction. I will see if I can find a case on point.
Hi,
I just completed my last LLM Research Paper at ANU on this very topic ! ... can't see how they can claim for worldwide damages as this would amount to imposing Australian defamation law on all jurisdictions throughout the world. Any judgement wouldn't be enforced in the US for a start for public policy reasons as it clearly offends the 1st Amendment right to freedom of speech. I agree with you there's also enforcability problems in NSW as presumably the defendant doesn't have any assets here (heard him interviewed on the radio ahd he said he's never been to Australia). I also seem to remember other jurisdictions aren't too keen on enforcing judgements made pursuant to a foreign court using their long arm statutory (Order 11) jurisdiction.
Anyway, will try to get along to the NSW Supreme Court to see how it plays out on 14 December ... should be interesting !
Cheers,
Warrick Dobbie
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