An increasing number of defamation cases are being prosecuted in the Federal Court of Australia.

In this blog post, I look at a recent decision (9 May 2023) in which the Federal Court considered when, during the course of a case, the serious harm element should be considered and determined. The case of Selkirk v Hocking [2023] FCA 432 gives us an interesting perspective on the matter.

What is the Serious Harm Element?

In Victoria, the serious harm element arose from amendments made to the Defamation Act 2005 (Vic) (Defamation Act) in 2020. It introduced the “serious harm element” as a necessary factor in a defamation cause of action. (note: this factor is yet to apply in Western Australia).

Timing of Serious Harm Element

The fifth and sixth respondents in this case applied for the serious harm element to be determined before the trial commenced, as provided under s 10A(4) of the Defamation Act.

The Defamation Act's sub-sections 10A(1), (5) and (6) provide that a judicial officer should determine the serious harm element as soon as practicable before the trial unless there are special circumstances justifying postponement.

The factors that a judicial officer may consider when deciding on the presence of special circumstances include the:

cost implications for the parties,
resources available to the court, and
extent to which establishing the serious harm element is linked to other issues determined during the trial.

Does this section apply to the Federal Court?

In Selkirk v Hocking, the court considered a complex jurisdictional issue.

This was whether ss 10A(5) and (6) of the Defamation Act are picked up by s 79(1) of the Judiciary Act 1903 (Cth).

This question arises because:

once federal jurisdiction is engaged, as per Rana v Google Inc (2017) 254 FCR 1 at 7, the entire matter falls within the federal jurisdiction, and there's no concurrent federal and State jurisdiction being exercised;
the court also needed to determine how the Defamation Act, as a state statutory law, applies in the exercise of federal jurisdiction (see Solomons v District Court (NSW) (2002) 211 CLR 119 at 134 [21]);
section 79(1) of the Judiciary Act states that each State or Territory's laws, including those relating to procedure, evidence, and the competency of witnesses, should be binding on all Courts exercising federal jurisdiction, unless otherwise provided by the Constitution or Commonwealth laws.

A potential roadblock in the application of ss 10A(5) and (6) of the Defamation Act emerged concerning the Federal Court Act's ss 37M, 37N, and 37P, which define overarching purpose of civil practice and procedure provisions, require parties to act consistently with the overarching purpose, and grant the Court power to give directions about practice and procedure in a civil proceeding, respectively.

That is:

is there an inconsistency between the Defamation Act and the Federal Court Act in relation to the timing of when the serious harm element is determined?

it might be inconsistent with the “overarching purpose of civil practice” provisions of the Federal Court Act to, in effect, abide by what the Defamation Act says in relation to the timing of when the serious harm element gets dealt with during the course of a case.

The Judge stated at [41]:

The courts have long warned of the potential perils of hearing separate trials of issues. In Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 55 [168]–[170], for example, Kirby and Callinan JJ said:

… The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.
The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court’s, rather than the parties’, interests.
Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.

How the Judge decided to deal with the application

The court decided to treat the application as brought under s 37P of the Federal Court Act and r 30.01 of the Federal Court Rules, and to order that the following questions be heard separately:

Whether the article conveyed one or more of the defamatory imputations alleged;
The extent of publication of the article; and
Whether, in light of the answers to (1) and (2), publication of defamatory matter about the applicant caused, or is likely to cause, serious harm to her reputation.

This approach, as noted by Sweeney J in TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 at 95, may determine the outcome of the proceeding and save the parties the expense of a trial on all issues. The advantages of ordering such questions separately are, as Sweeney J notes, "plain".

In the circumstances of Selkirk v Hocking, where the article was allegedly published to no more than three persons, and where the applicant has arguably agreed to having engaged in the same conduct that the article subjects her to, hearing these questions separately could be particularly beneficial.

Do sub-sections 10A(1), (5) and (6) of the Defamation Act apply in the Federal Court?

The Court in Selkirk v Hocking did not conclusively determine whether the application of ss 10A(5) and (6) of the Defamation Act gives rise to any potential statutory inconsistency standing in the way of the operation of s 79 of the Judiciary Act.

This issue was deemed sufficiently unclear that the Court decided not to resolve it at the time, opting instead for a case management hearing to be convened for further directions or orders.